
    NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY v. THE UNITED STATES.
    [No. 33082.
    Decided February 25, 1918.]
    
      On Defendants’ Demurer.
    
    
      Statutory construction; officers’ discretionary powers. — Section 4002, Revised Statutes, lodges in the Postmaster General the discretion of determining the details to be followed in the weighing of the mails “ not less than once in every four years,” and he alone was to determine the average weight of the mails carried and how such average should be obtained.
    
      Contracts; protests, when unavailing. — Where a railroad executes a distance circular and contemporaneously refuses to accept the amount there stated as full compensation and the Postmaster General then informed the railroad that said compensation was all that would be paid, and the railroad continues to carry the mails, there was a “ meeting of the minds ” and said road is bound by the terms offered for such service.
    
      Estoppel. — Plaintiff having continued to carry the mails with the increased weights occasioned by the institution of the parcel-post service under the act of August 12, 1912, 37 Stat., 539, 557, and by its failure to avail itself of the privilege of refusing to perform its contract thus further reaffirmed its contract and can not now claim an additional allowance for such service.
    
      Common carriers not obligated to carry mails vn absence of contract.— No claim for the taking of private property under the Fifth Amendment of the Constitution can be predicated upon a eon-tract to carry tlie mails, even though it appear that the compensation received was unreasonable and to that extent confiscatory, when the contract was entered into voluntarily and the railroad was under no duress to continue the service.
    
      The Reporter’s statement of the case:
    The averments of the petition to which the defendants demur will be found sufficiently set forth in the opinion of the court.
    
      Mr. J. Robert Anderson, with whom was Mr. Assistant Attorney General Huston Thompson and Mr. Joseph Stewart, for the demurrer.
    
      Messrs. S. S. Ashbaugh and Edward G. BucMand opposed. Messrs. Arthur P. Russell, Charles S. Pierce, Charles H. Blatchford, and Henry J. Hart were on the briefs.
    It is alleged in the amended petition that under the statutes the Postmaster General caused the mails to be weighed for the period of 105 days as of October 18, 1908, and as of October 27, 1912, and took the average weight so ascertained for the total weight carried for each fiscal year of the succeeding quadrennial period.
    It is further alleged that the Postmaster General did not comply with the law and ascertain the amount of mail carried each of the fiscal years within this period, and that no compensation whatever was paid by the Postmaster General to the claimant for the annual increase of mail set out in the amended petition.
    It is thus seen that the Postmaster General, by refusing to weigh the mails annually, has, according to the weights so ascertained by him eight months before the beginning of the quadrennial period, paid the claimant for only a portion of the mail earned during each of the fiscal years named in the amended petition, and that under the statutory rates a large amount of money is due the claimant.
    Under Section 4002, Revised Statutes, requiring the Postmaster General to weigh the mails “not less frequently than once in every four years,” the weights could of course be taken annually, and these annual weights would necessarily be the basis for the pay “per mile per annum.” It is not following the law to weigh the mails before the quadrennial period begins, extend the weight into four years, divide it into four equal parts for the purpose of payment, and thus get a different and smaller amount as a basis than would be secured by an annual weighing. This is not giving “ pay per mile per anum ”; it is simply giving one-quarter of an incorrect quadrennial amount. There can be but one correct amount for each pear, and that is the amount actually carried. There is no more legal right for disregarding “per annum” than for disregarding “ per mile,” and the Postmaster General has no right to decrease the compensation by disregarding the law. The Postmaster General has substituted “per quadrennial period” in the place of “per annum,” and thus fixes the pay “ per quadrennial period ” established for weighing instead of “per annum” established for pay. If the weighing is done quadrennially still the pay must be fixed annually. He has confused the right to weigh quadrennially with the statutory requirement to fix the pay annually upon the average anual weights. This statute has been ignored because following it, as alleged in the amended petition, “would result in paying the railroad companies more money than would be paid upon the quadrennial weighings.” The correct weights “per annum” can be ascertained within the strict letter of the law by an annual weighing within each year, or by averaging the weights taken at the beginning and at the end of the period, but giving each year one-quarter of the total amount for the quadrennial period is not complying either with the letter ■ or spirit of the law. “ Per annum ” means that the pay for one year can not be based on the amount of mail carried some other and different year, not even in the same weighing period. The claimant under this statute is entitled each year to pay for the amount of mail carried that year.
    The claimant has not by performance waived any right to demand pay for the true weight of mail carried each year. The statute should have been followed. This point is covered in the case of the Union Pacific R. R. v. United States, 104 U. S., 686, where it is said:
    “The service can not be treated as voluntary, in the sense of submission to exactions, believed to be illegal, so as to justify an implied agreement to accept the compensation allowed; for, according to the terms of the obligation, which it did recognize and now seeks to enforce, it had no option to refuse performance when required. But it might perform, rejecting illegal conditions attached to the requirements and save all its rights. This it did.”
    The parcel-post law of August 24, 1912, took effect January 1, 1913, and by this means the amount of mail carried by the claimant was vastly increased. On the 4th of March, 1913, Congress provided an increase of pay should be given not exceeding 5 per cent per annum. The full amount of this 5 per cent was not given the claimant, according to the allegations in the amended petition, and this is held to be a violation of the statute in the case recently decided by this court — A. T. & 8. Fe Ry. Go. v. United States, 52 C. Cls., 338. This in itself furnishes a good cause of action as set out in the amended petition, although the allegation there contained is that the 5 per cent is not adequate compensation and a greater amount is demanded.
    It is now claimed by defendants that the Postmaster General had the right to impose this new and different kind of commodities formerly carried as freight or express on the mails as weighed as of October 18, 1908, and October 27, 1912, without additional compensation, or with only the small part of the compensation granted by the act of March 4, 1913, which he chose to give. As the court has decided that the whole amount named in the act of March 4, 1913, should be given, much more then under the allegations of the amended petition can the claimant receive an additional amount when it has protected itself by this protest:
    “It reserves the right to claim and recover a reasonable compensation for any additional service which it may agree to perform.”
    Under this protest the claimant did not elect to perform this service, with freight and express added to the mails, at the old weights and at the compensation named. This is just what it refused to do, and if the Postmaster General did not intend to weigh the mails again with the parcel-post packages added, or pay an additional amount, he should not have delivered these packages for transportation.
    It can not be held that the addition of parcel-post packages can be added after July 1, 1918, to the amount of mail carried by claimant, as ascertained by a weighing in the fall of 1912. This new matter taken from freight and express can .not be added by virtue of the words “subject to future orders,” as found in the notice of adjustment dated November 13, 1913, so as to bring it within the decision in the Eastern Railroad case, 129 U. S., 391. These words were no part of the distance circular, or the claimant’s protest, and transportation of the mails thereunder, as of July 1, 1913. If the Postmaster General had weighed the mails annually, or averaged the weights, as he should have done, then any amount added during a later part of the year might be overlooked because of the impracticability of weighing the mails every day of every month.
    But to add the whole of the parcel post for the quadrennial period to the weight taken eight months before the period began, and then claim that it can be upheld without giving compensation is too unjust, unreasonable, and unfair to commend it to judicial construction.
    The claimant is under a common law obligation to carry all commodities which may be offered to it for transportation, and is entitled to just and reasonable compensation therefor.
    The rights and duties of the claimant in respect to mails are similar to its right and duties in connection with freight of the general public. By engaging in the business of a public carrier it agreed to transport personal property from place to place, and it must receive all property of a kind which it professes to carry, subject to such conditions as it may reasonably impose. For this service a fair compensation must be paid. When the mails were offered to it by the Post Office Department' for transportation the claimant could no more refuse to carry them than it could refuse to carry parcels of freight properly billed and marked. The duty to carry was imposed on it by virtue of its occupation, and could in case of refusal have been enforced by appropriate proceedings.
    It is alleged in the amended petition that the total compensation as received is inadequate; unremunerative, confiscatory and unconstitutional. It has recently been held by the Supreme Court of the United States in the cases Northern Pacifio Railway Go. v. North Dakota, 236 U. S., 585, and Norfolk & 'Western By. Go. v. West Virginia, Id., 605, that each branch of railroad service should be fairly self-sustaining, and that one branch of service can not be overtaxed to support another branch of service which is not receiving a fair remuneration.
    All railroads in the United States have been established by Congress as post roads, and during the period named in the amended petition the railroad lines of the claimant were legally declared mail routes. As such they were being operated by the company under the direction of the Postmaster General and in accordance with the obligation fixed by law. The private property of the claimant was thereby taken for a public use, and for the services performed the claimant is entitled to just compensation to be fixed by due process of law.
    It will be seen that the carrying of the mails has been made compulsory upon the railroads which have been designated mail routes by the Postmaster General.
    In the case of Searight v. Stokes, 3 How., 151, Mr. Chief Justice Taney held that, “ The United States have unquestionably a property in the mails,” and that “ a carriage •when it is carrying the mail is laden with the property of the United States within the true meaning of the compact,” and further that the United States in carrying the mails “ are not mere common carriers, but a Government performing a high official duty in holding and guarding its own property as well as that of its citizens committed to its care.”
    These same views were expressed and the same conclusions reached in the case of Bankers5 Mutual Go. v. Minneapolis, St. P. & S. S. M. By. Go., 117 Fed., 434, where it is said:
    
      “ It seems clear to us that defendant in error was a public agent of the United States in relation to carrying the mail, for the reason that the Constitution of the United States conferred upon it the power to establish post offices and post roads, and this power was granted by the people as one of the sovereign powers to be exercised by the general government exclusively. By virtue of this grant of power, the United States has always, through its post office department, assumed the exclusive charge of the carriage and delivery of the mail for the benefit of all the people. In doing so, the United States is beyond question engaged in the discharge of a governmental function. All persons or corporations who are engaged in the carriage or delivery of the mail by the authority of the United States confei’red by contract or general laws, are but the instruments used by it to discharge this function.” Union Pacifie R. R. v. United States, 219 Fed., 427; Great Northern Ry. v. United States, 236 Fed., 433.
    It is in this sense that Mr. Justice Lamar said in the Santa Fe case, 225 U. S., 640, that in carrying the mails the railroads are “serving as an agency of the Government.” The dicta in certain cases can all be harmonized with the decisions when applied to the compensation, for under the Fifth Amendment which prohibits the taking of “private property for public use without just compensation,” the railroads can protect themselves against confiscatory rates, as has been done by the claimant in this case.
    In the case of the land grant railroads, when it was put into their charters that they should carry the mails at such compensation as Congress might direct, no new obligation was thereby placed on them which was not imposed upon other railroads, but only a different and relatively less compensation was to be paid each year in cash, because of the aid which had been granted as a prior part of the consideration. This is clear from the decision in the Union Pacific R. R. Go. case, 104 U. S. 662:
    “United States mail shall at all times be transported on said railroads; under the direction of the Post Office Department at such prices as Congress may by law direct.”
    
      The proportional amount of the annual cash payment is set out in the Chicago c& Northwestern By. Co. case, 104, U. S. 680, where a later statute is quoted:
    “ 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 prices as Congress should by law direct, shall receive only eighty per centum of the compensation authorized by this act.”
    The charters of the land grant roads merely established annual compensation proportional to the compensation of non-land grant roads, but did not create a new or different obligation in carrying mails.
    See also Chicago, Milwaukee & St. P. By. Co. v. United States, 104 TJ. S. 687; Eastern Bailroad Co. v. United States, 129 TJ. ¡3. 391.
    These four cases, two land grant and two nonland grant, are in complete harmony, the same rule is applied, and all decide that carrying the mails is compulsory when this service is called for under the law by the Postmaster General. Whether a railroad is a land grant or a nonland grant company becomes immaterial, therefore, so far as the obligation to carry the mails is concerned. Both classes of railroads are performing similar governmental functions; both are required to carry the mails; and both may protest as to compensation. When the Postmaster General sends out his distance circular to a railroad company in operation, calling upon it to fill out the circular and return it to him preparatory to carrying the mails, he has invited performance of a governmental function, and this can not be refused, but the railroad company may protect itself by filing a protest to the compensation offered and instituting an action in the proper court. In performing this governmental function in carrying the mails there is no difference between a land grant and a nonland grant railroad. The obligation rests upon both alike.
    A railroad company can not refuse to carry the mails over the non-land grant part of its system, when it is obliged by statute and its charter to carry the mails over the land grant part of the same system. A railroad company is not required to perform a governmental function over one part of its line and not over another.
    In the case of Chicago, Milwaukee <& St. Paul B. B. Co. v. United States, 198 U. S. 385, it is said:
    “ A contract may not be forced upon a railway. It may accept, however, and become bound by the action of the-Post Office Department. Eastern Bailroad v. United States, 129 U. S. 391. The record does not show any protest against the order of December 3.”
    The decisions in all these cases are in harmony, although some language in some of the opinions may at first be thought to be inconsistent. But it is not to be so construed, and the words in the last paragraph in the Santa Fe case, 225 U. S. 650, should be given their full meaning and effect:
    “ It may have been impracticable to furnish long cars one way and short ones the other. But there was in that fact no hardship imposed by law. The company could have pre-tected itself against onerous terms, or inadequate compensation, by refusing to supply the facilities on the conditions named by the department.”
    The acts of Congress, and the Buies of the Post Office Department promulgated thereunder, never have provided for a written contract between the Postmaster General and the railroad carrier for the transportation of the mails. It is a matter of common knowledge to this court, the Postmaster General, and to railroad carriers in carrying the mails, that under the provisions of section 4002, Bevised Statutes, section 1317 of the Postal Laws and Begulations, 1913, the Postmaster General sends out distance circulars preceding each quadrennial period, which distance circulars are in all cases practically alike. These distance circulars are shown to be mere orders of the Post Office Department, and not written contracts at all; they are exactly what the title indicates.
    The railroad company is required to furnish the Postmaster General the distance over which the mails are to be transported on legal routes, which information is peculiarly within the knowledge of the railroad company. This is the only fact the railroad company, under the distance circular, is required to furnish, and every other provision set out in the distance circulars is either named in the statute itself, or in the Eules and Eegulations of the Post Office Department. The distance circulars do not' indicate any contractual relation between the Post Office Department and the railroad companies. It is clear that all the lines of the claimant have been made post routes; that the Postmaster General sent out the distance circulars at the beginning of each quadrennial period; that the claimant filled out the distance circular and returned the same to the Second Assistant Postmaster General as directed in the first section, and as a part thereof included the protest; that thereafter the Postmaster General with this protest before him each day furnished the claimant with the mails to be transported over its lines in accordance with his orders and over the claimant’s protest; that thereunder and thereby the private’ property of the claimant was taken to that extent for public use; and the value of this private property so taken for public use should be fixed by due process of law.
    That this claimant can not be deprived of its “ property without due process of law ” will be admitted. An attempt to fix an unjust compensation would be unconstitutional and void. The compensation for the use of private property taken for carrying the mails must therefore be fixed by courts of competent jurisdiction in regular proceedings instituted for that purpose.
   BaeNet, Judge,

delivered the opinion of the court.

The defendants demur to the amended petition of the plaintiff consisting of two counts. The first count embraces two claims. The first claim in this count is an alleged balance due because of the improper and illegal construction given by the Post Office Department to section 4002 of the Eevised Statutes, as amended, in the weighing of the mails, and in determining the amount thereof carried by the plaintiff, as well as its proper compensation for the same. The second claim in the first count is for additional compensation for carrying parcel-post packages, after the same were added to the mails by the act of Congress of August 24, 1912, 37 Stat., 557.

The second count of the petition is for a sum alleged to be due the plaintiff over and above the amount which it has already received for carrying the mails, because the amount so received has been insufficient for the expense of carriage, and in consequence of which the compensation fixed by the Postmaster General is unjust, unreasonable, and confiscatory, whereby the private property of the plaintiff has been taken for public use without due compensation; or, as we understand it, a claim under the Fifth Amendment of the Constitution for the taking of the property of the plaintiff for public use without just compensation.

We will discuss these claims as stated in their order. That part of section 4002 of the Eevised Statutes which relates to the present issue is as follows:

“ That the pay per mile per annum shall not exceed the following rates, namely: On routes carrying their whole length an average weight of mails per day of two hundred pounds, fifty dollars [now $42.75] * * * the average weight to be ascertained in every case by the actual weighing of the mails for such a number of successive working days not less than thirty [now 90] at such times after June thirtieth, eighteen hundred and seventy-three and not less frequently than once in every four years, and the result to be stated and verified in such form and manner as the Postmaster General may direct.”

The amendments to said section are immaterial in the discussion of this claim and therefore except as above are not given.

It is alleged that the Postmaster' General in ascertaining the average weight of the mails carried by the plaintiff and other railroads “has weighed the mails only once in four years and the daily average thus obtained was used by the Postmaster General as the basis for stating the daily average weight of the mails carried for the whole quadrennial period beginning some months after such weighing was made, and that the plaintiff thus received its compensation for the carriage of the mails upon a basis of the average amount carried so ascertained some months before the quadrennial period of its contract began; and that as the amount of the mails carried by the plaintiff was continually increasing from year to year the plaintiff was compelled to carry a large amount of mails for which it has never received any compensation.”

It is contended by the plaintiff that under the statute quoted it was the duty of the Postmaster General to more accurately and justly ascertain the average weight of mails carried annually by the plaintiff, and that this should and could have been done either by weighing the mails annually during the term of the quadrennial contract periods, or by weighing the mails at the beginning and end of each of said periods, and taking an average of said weights as the contract basis. It is also contended by the plaintiff that under the law it was compelled to carry the mails, and that that fact should be considered in the consideration of this case.

We can not agree with the contention of the plaintiff that in the weighing of the mails section 4002 was not properly construed and administered by the Postmaster General. That section provides that the railroads shall be paid for carrying the mails according to the average weight so carried. This was done because it would have'been practically impossible to determine the weight of the mails carried every day. This average weight was to be determined by weighing the mails not less than once in four years. It is not necessary to argue that if the mails were weighed once in four years this statute in that respect was properly administered. The details to be followed in this matter were entirely at the discretion and under the direction of the Postmaster General. He alone was to determine the average weight of the mails carried and how such average should be obtained.

Now, as to the contract with the railroads after this average is determined. The terms of such contract were entirely within the discretion of the Postmaster General. The railroad company had nothing whatever to do with this weighing; it was all for the benefit of the Postmaster General to give him information to enable him to exercise wise discretion in paying the railroads for carrying the mails, and when so exercised the railroads could accept the terms offered them or not as they should determine. This statement, of course, does not refer to land-grant railroads. The contention of the plaintiff that nonland-grant railroads are Government agencies and thus could be compelled to carry the mails whether they wished so to do or not finds no authority anywhere in the books. Anyone who performs a contract for the Government, while so performing, is in a sense a Government agency, but that does not relieve him from the obligations of his contract and did not compel him to enter into it.

This distinction between land-grant and nonland-grant railroads has always been recognized. So far as we have been able to ascertain, all of the grants to railroads of public land, except in the case of the Union Pacific Railroad,, have contained the provision that the “ United States mail shall at all times be transported on said railroad under the direction of the Post Office Department at such price as Congress may by law direct; and until such price is fixed by law the Postmaster General may fix the rate of compensation.”

If all railroads could be compelled to carry the mails why did the Congress insist upon this provision? It is hardly necessary to cite authorities upon this point of the compulsion of the railroads, but the following are some of them: Union Pacific Ry. Co. v. United States, 104 U. S., 662, 665; Eastern R. R. Co. v. United States, 20 C. Cls., 23; 129 U. S., 391; Atchison, Topeka, etc., Ry. Co. v. United States, 225 U. S., 640; Texas & Pacific Ry. Co. v. United States, 28 C. Cls., 379. In the Eastern Railroad case Chief Justice Richardson, speaking for this court, and which language was approved by the Supreme Court, said that the order for the reduction of compensation made by the Postmaster General “ constituted an offer on the part of the Postmaster General which the claimant might decline or accept at its pleasure.”

Of course all this has been changed by the act of Congress of July 28,1916, 39 Stat., 412, 429, which provides that railroads may now be compelled to carry the mails, and further pi’ovides the manner in which their pay for such service is to be determined. The fact of the enactment of this law is at least presumptive evidence that no such power theretofore existed. This legislation, however, does not affect any of the issues in this case.

It is averred in the petition that the plaintiff in filling out each of the distance circulars which it received from the Post Office Department during the period of its service in carrying the mails added a refusal to accept the same as full compensation, whereupon the Postmaster General informed the plaintiff that this compensation was all that would be paid for the service. That was all of the correspondence upon the subject and the plaintiff continued to carry the mails. The plaintiff insists that this shows that there was no meeting of the minds of the parties to the contract and hence that no contract for the carrying of the mails by the plaintiff was ever made.

We can not agree with this claim, for the “ meeting of the minds ” of the parties was consummated when the plaintiff received this notice from the Postmaster General and still continued to carry the mails. After receiving this notice the plaintiff had the alternative of carrying the mails upon the terms offered by the Postmaster General or refusing to carry them at all. It chose to continue to carry the mails and is bound by the terms offered it for such service.

This brings us to the second cause of action in the first count, namely, the alleged overloading of the mails by the Parcel Post Service. This branch of the case set out in the petition can be considered from two viewpoints: First, Did the increasing of the Parcel Post Service by the act of August 12, 1912, 37 Stat., 539, 557, relieve the railroads from the obligations of their contract for the carrying of the mails made before the enactment of that law ? Second, If it did and they still continued the service, including the added parcel-post matter, and also accepted the added compensation therefor provided by the act of March 4, 1913, 37 Stat., 791, 797, was that a reaffirmance by such roads of the contracts entered into before such increase of mail matter?

That at least a part of this added compensation was received by the plaintiff is admitted in its brief. We believe that the first interrogatory should be answered in the negative. For various reasons the volume of mails carried has been abnormally increased at times for a long series of years. The plaintiff agreed to carry the mails with knowledge of this fact.

But without extending the discussion of this view of the question involved further, and even admitting such an abnormal increase of the mails by the extension of the pareelpost contingency as would have constituted a violation of the contract which the plaintiff had entered into with the Government, and would have justified it in refusing to perform its contract further, it did not do so. It continued in its performance without any change in its terms. It was offered the mails for carriage under its contract and it took them and accepted the increased compensation provided therefor by law. It thus reaffirmed its contract and it is now too late to claim an additional allowance for such service. Lackawanna, etc., Ry. Co. v. United States, 51 C. Cls., 426; Atchison, Topeka, etc., Ry. Co. v. United States, 52 C. Cls., 338; Eastern R. R. v. United States, 129 U. S., 391; Vogt v. Milwaukee (Wis.), 74 N. W. Rept., 789.

The case of Vogt v. Milwaukee was a suit by the plaintiff to recover for working overtime, an ordinance of the defendant city providing that eight hours should constitute a day’s work. The plaintiff for two months had worked eight hours a day and for ten months twelve hours a day, receiving the same wages during both periods. He had received such wages regularly and signed the pay rolls without protest. It was held that he was estopped after his discharge from claiming for extra work overtime. In the opinion in that case the court said:

“ In absence of an express contract — and none is claimed — as to overtime, the fact that the pay rolls were made out, and his wages paid him, at a given rate, as effectively notified him that his compensation for the time in service was the rate so specified as if he were formally notified. * * * The law which allows contracting parties, through the medium of an express contract, to fix in advance the value of a service to be rendered also allows them to fix the value in cases of implied contract, after the service has been rendered. It may as well be fixed by acts of the parties as by express agreement.”

We now come to the second count of plaintiff’s petition, which is a claim for the alleged taking of private property for public use without just compensation. This claim is based upon the alleged fact that owing to various circumstances, like the increased cost of material and labor, the compensation received by the plaintiff for the carriage of the mails during the term of its contracts was far below a reasonable one; in fact, was less than cost and hence to that extent confiscatory. If the plaintiff had been compelled to carry the mails without a contract for that purpose and claimed greater compensation therefor than it received and that less was unreasonable and confiscatory, there would be a sound basis for this claim. However, all of the service which it rendered was under contracts voluntarily entered into with the Government. It may have lost money by such contracts; it may have lost so much as to bankrupt it and thus make it in effect completely confiscatory; but that would not be the first time that contractors have lost money by their engagements with the Government; and we have never before known any contractor to claim that property lost by him in the performance of a contract with the Government had been taken from him within the meaning of the Fifth Amendment, and hence that he was entitled to just compensation for the same. What constitutes a taking ” within the meaning of the Fifth Amendment is a question this court is often called upon to determine, and we have never examined a case in any court where property voluntarily given up and paid for under contract has been claimed as taken under the Fifth Amendment.

The plaintiff may have been constrained to take less under its contract than it thought was reasonable in amount because its refusal would be an intolerable hardship to other customers whom it served, but certainly it will not be contended that it was compelled to do this by duress. Neither was the plaintiff compelled to receive the mails from the Government as a common carrier, for in the carriage of the mails the railroads are not common carriers. Atchison, To peka, etc., Ry. Co. v. United States, 225 U. S. 649; Searight v. Stokes, 3 How., 151, 169.

It follows from the foregoing that the demurrer to the amended petition of the plaintiff should be sustained, and the petition dismissed.

Hat, Judge; DowNey, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  