
    THE WISCONSIN CENTRAL RAILROAD COMPANY v. THE UNITED STATES.
    [No. 15668.
    Decided June 27, 1892.]
    
      On the Proofs.
    
    The only question in this case is one of law — whether the claimant is or is not a land-grant road.
    I. The proviso in the Wisconsin Land-Grant Railroad Act 1856 (11 Stat. L., p. 20, § 5), “ 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,” is made a part of the Land-Grmt Act 1864 (13 id., p. 66, § 3), hy the provision that the lands now granted are granted “upon the same terms and conditions asare contained in the act” 1856.
    II. Canons of construction which may lead to the practical result that a public measure shall mean one thing when it is a hill before Congress and another when it is a statute before the judiciary are to be shunned. Neither should effect be given to a canon which will render a statutory condition wholly inoperative.
    HI. A land-grant road, which has no option, but must transport the mails for such compensation as Congress may by law direct, can not be misled by any misinterpretation of a statute on the part of the Postmaster-General. The rule in Dwval’s Case (25 C. Cls. R., 46,59), reaffirmed.
    
      The Reporters' statement of tbe case:
    Tbe following are tbe facts of tbis case so far as tbey are involved in tbe decision.
    I. Tbe claimant is a corporation created and organized under tbe laws of tbe State of Wisconsin, having its principal office in tbe city of Milwaukee, and owns and operates lines of railroad in that State. One of its lines of railroad extends from Menasba northwesterly to Stevens Point, a distance of about 63 miles, .and thence to Ashland, on Lake Superior, tbe distance between Stevens Point and Ashland being 191.32 miles, more or less. Another of its lines of railroad extends from Stevens Point southward to Portage City, a distance of 77.93 miles, more or less.
    II. The claimant was aided in tbe construction of its railroad between Stevens Point and Ashland and between Stevens Point and Portage City by tbe grant of public lands made to tbe State of Wisconsin in and by section 3 of tbe act of Congress approved May 5, 1864, chapter 80, entitled “ An act granting lands to aid in tbe construction of certain railroads in tbe State of Wisconsin.” All the lands embraced by section 3 of tbe said act of 1864 were granted by tbe State of Wisconsin to tbe Portage and Lake Superior Railroad Company and to tbe Winnebago and Superior Railroad Company by acts of May 9,1866, and May 10, 1866, respectively. By tbe act of April 29, 1869, tbe consolidation of these two railroad companies, under tbe name of tbe Portage, Winnebago and Superior Railroad Company, was authorized; and by tbe act of February 4,1871, tbe name of tbe consolidated company was changed to tbe Wisconsin Central Railroad Company. Tbe railroad of tbe claimant was duly located from Portage City to Stevens Point and from Stevens Point to Ashland, and was completed to Ashland in or about 1877. There was no grant of public lands made to aid in tbe construction of tbe railroad known as tbe Wisconsin Central Railroad, in or by tbe act of Congress approved June 3, 1856, chapter 43, entitled “An act granting public lands to tbe State of Wisconsin to aid in tbe construction of railroads in said State;” but all tbe lands granted by Congress in aid of tbe construction of tbe said railroad, and which have been certified or patented on account of the same, were so granted, certified, and patented by, under, and by virtue of tbe third section of tbe said act of May 5, 1866. Tbe "grant so made has been practically adjusted, and in tbe adjustment thereof no deductions were made by reason of tbe said act of June 3,1856.
    III. Prior to about’ December 27,1877, tbe Phillips & Colby Construction Company operated tbe Wisconsin Central Railroad, and under orders of the Post-Office Department carried tbe mails over tbe line from Menasha, by way of Stevens Point and Worcester, to Ashland, designated as route 25017, and over tbe line from Stevens Point, by Hancock, to Portage City, designated as route 25027, afterward 25015. On or about December 27, 1877, tbe said railroad was turned over by tbe Phillips & Colby Construction Company to tbe Wisconsin Central Railroad Company, which thereafter performed tbe mail service on tbe said postal routes under direction of tbe Post-Office Department. Tbe said route 25017, by subsequent extensions, came to embrace the line of railroad from Milwaukee, by Stevens Point and Worcester, to Ashland, on Lake Superior. On or about July 1,1879, the number of the route from Stevens Point to Portage City was changed from 25027 to 25015, by which latter number the said route was designated up to the commencement of this suit.
    
      IV. * * * # ' # # *
    The Phillips & Colby Construction Company was duly paid in full for carrying the mails as aforesaid from July 1, 1875, to September 30, 1877, according to the rates named in the said orders, no deductions being made by the Post-Office Department on account of land grant, as under section 13 of the act of July 12, 1876.
    V. The following orders were afterwards made by the Post-Office Department on the dates given in relation to the pay of the Wisconsin Central Eailroad Company for carrying the mail on route 25017, between Menasha and Ashland.
    
      “ [1877. Dec. 27. Order No. 7504.]
    “E. B. Phillips, president of the Phillips & Colby Construction Company, operating the Wisconsin Central E. E., reports the turning over to the Wisconsin Central E. E. the entire railroad owned and heretofore operated by the P. & O. Construction Company.
    “ Charles L. Colby, president of the Wisconsin Central E. E. Co., reports the appointment of Mr. E. B. Phillips as agent of the W. O. E. E. Co., and requests that hereafter payments be made to him. Address and pay accordingly.
    “[1878. July 31. Order No. 6138.]
    “Authorize the Auditor to decrease the pay of the Wisconsin Central Eailroad Company for carrying the mails between Menasha and Ashland from July 1,1878, to June 30,1879, at the rate of $609.98 per annum, leaving the pay from that date $11,589.59 per annum, $46.17 per mile, being a reduction of five per centum from the rates fixed for weight of mails in accordance with the act of June 17,1878.” _
    The claimant carried the mails over said route 25,017, including the part between Stevens Point and Ashland, from about December 27,1877, to June 30,1879, and was paid in full for that service at the rates named in the orders set forth in finding iv and in this finding, from September 30,1877, to June 30,1879, no deductions being made by the Post-Office Department on account of land grant, as under section 13 of the act of July 12,1876.
    
      YI. Tbe following orders were made by tbe Post-Office Department at tbe dates named in relation to tbe pay of tbe claimant for carrying tbe mails on its railroad over said route 25,017, including that portion of tbe same lyingbetween Stevens Point and Ashland, for another term of four years from July 1, 1879, to June 30, 1883.
    “ [1879. Sept. 23. Order No. 9533.]
    “Authorize tbe Auditor of tbe Treasury for tbe Post-Office Department to pay tbe Wisconsin Central Eailroad Company quarterly, for carrying tbe mails between Manasba and Ash-land, from July 1,1879, to June 30,1883, at tbe rate of $11,005.11 per annum (being $48.74 per mile per annum for 172.42 miles, and $34.12 per mile for 78 miles), unless otherwise ordered, subject to fines and deductions.
    “ [1879. Dec. 5. Order No. 12292.]
    “From July 1,1879, add $1,140.36 per annum to pay, making tbe whole pay $32,205.47 per annum, being $48.74 per mile for 250.42 miles. State trips at 6 per week.”
    Afterwards tbe following orders were made by tbe Post-Office Department at tbe date given.
    “ H880. June 2. Order No. 5917.1
    “From July 1st, 1876, to September 30th, 1877, decrease pay at tbe rate of $905.40 per annum, being $9 per mile between Stevens Point and Worcester, 100.06 miles, leaving tbe pay $36 per mile per annum.
    “And from Jan’y 1 to Sept. 30, 1877, decrease pay at tbe rate of $844.86 per annum, being $9.72 per mile per annum, Worcester to Ashland, 86.92 miles, leaving tbe pay $38.88 per mile. And from October 1, 1877, to June 30, 1878, reduce-pay at rate of $1,822.69 per annum, being $9.72 per mile, Stevens Point to Ashland, 187.52 miles. And amend order of July 31,1878 (No. 6138), so as to pay, from July 1,1878, to June 30,1879, at tbe rate of $9,858.77 per annum, being $46.17 per mile to Stevens Point, 63.5 miles) and $36.94 per mile thence to Ashland, 187.52 miles.
    “ These reductions of pay are made in conformity with the advice of tbe Assistant Attorney-General, declaring tbe part of this line from Stevens Point to Ashland subject to tbe land-grant deductions.
    “ [1880. June 2. Order No. 5918.]
    “ From July 1,1879, let tbe pay on this route be at the rate of $10,378.12 per annum, being $48.74 per mile, to Stevens Point, 63 miles, and $38.99 per mile thence to Ashland, 187.42 miles (land grant). This revision of pay is in accordance with the advice of the Assistant Attorney-General.”
    The advice referred to in the two orders last above mentioned was an “informal opinion” of the Assistant Attorney-General for the Post Office Department, that the thirteenth (or land grant) section of the act of July 12,187C, chapter 179, was applicable to the line of claimant’s railroad from Portage, by Stevens Point, to Ashland.
    When the claimant was informed of the two last-mentioned orders, and the deductions from its pay consequent thereupon, it presented to and filed in the Post-Office Department, by its general solicitor, a formal protest and argument, in writing, dated October 16,1880, against the same, denying the legal validity thereof, upon the ground that the lands granted in aid of the construction of its said railroads in and by the third section of the act of May 5,1804, were not granted upon the condition that the mails should be transported over said railroads at such price as Congress might by law direct, and that the thirteenth section of the said act of 1876 had no application, and could not belawfully applied, to the compensation of the claimant for its service in carryingthe mails upon its railroad between Stevens Point and Ashland, or between Stevens Point and Portage City.
    The questions upon the legal construction and effect of the third section of the said act of May 5,1864, and the thirteenth section of the said act of July12,1876, were referred by the Postmaster-General to the law officer of the Department, who, on January 24,1881, submitted to him an opinion in writing that the grant to'the claimant in the third section of the said act of 1864 was not subjected to the condition mentioned in the thirteenth section of the said act of 1876, and that there was “ no authority of law for the deduction made in this case from the agreed compensation for carrying the mails by the Wisconsin Central Eailroad Company.”
    On January 26,1881, in accordance with the said opinion, the Postmaster-General made two several orders, recalling the two last-mentioned orders, as follows:
    
      “ [1881. Jan. 26. Order No. 816.]
    “Eecall order of June 2, 1880 (No. 5917), in accordance with decision of the law officer, dated Jan. 24,1881.
    
      “[1881. Jan. 26. Order No. 847.]
    “Recall order of June 2,1880 (No. 5918), in accordance with decision of law officer dated Jan. 24, 1881.”
    The claimant carried the mails on its railroad over said route, 25017 between Stevens Point and Ashland during the said term of four years, from July 1,1879, to June 30,1883, and was paid by the Post-Office Department for that service in full at the rates named in the orders of September 23, 1879 (No. 9533), and December 5, 1879 (No. 12292), set forth above, no deductions being made by the Post-Office Department on account of land grant, as under section 13 of the act of July 12, 1876.
    YII. The following orders were made by a subsequent Postmaster-General, at the dates named, in relation to the pay of the claimant for carrying the mails on its railroad over said route 25017, including that portion of the same lying between Stevens Point and Ashland, for another term of four years, from July 1,1883, to June 30,1887:
    “[1884. Jan. 8. Order No. 376.]
    “Pay the Wisconsin Central Railroad Company, quarterly, for carrying the mail between Menasha and Ashland, from July 1,1883, to June 30,1887, at the rate of $18,836.73 $er annum, being $85.50 per mile for 59.9 miles (Menasha to Stevens Point), and $88.40 per mile for 191.32 miles (Stevens Point to Ashland —land grant) for transportation. Pay not fixed on residue.
    “This adjustment is subject to further orders and to fines and deductions.
    “[1884. Aug. 28. Order No. 13860.]
    “From April 23,1883, to April 15,1884, add to pay at the rate of $7,860.87 per annum, being $17.10 per mile for 33.30 miles, and $111.15 per mile for 65.60 miles extension from Milwaukee to Menasha; and from April 16,1884, add to pay at the rate of $5,613.62 per annum, making the entire pay from that date at the rate of $31,511.22 per annum, being $17.10 per mile for 33.50 miles (lap), $111.15 per mile for 127.16 miles, and $88.92 per mile for 189.06 miles, land grant, in accordance with new returns of the weight of mails and new distance circular.”
    The said orders were based upon the assumption that the claimant’s road between Stevens Point and Ashland was a land-grant road, so called, within and subject to the 13th section of the act of July 12,1876, and purported to compute its legal compensation for carrying the mails between those points, from July 1, 1883, to June 30, 1887, upon the land-grant basis, at the rate fixed by said act for railroads that have been aided in their construction on condition that the mails should be transported over the same at such price as Congress should by law direct, by deducting 20 per centum from the compensation authorized by law to be paid for such service to non-land-grant railroads.
    The following orders were also made by the same Postmaster-General:
    “ [1881. Jan. 4. Order No. 148.]
    “Eescind order of Jan. 26, 1881, No. 846, in accordance with the decision of the Postmaster-General dated Dec. 26,1883.
    “ [1884. Jan. 4. Order No. 149.]
    “Eescind order of Jau’y 26, 1881, No. 847, in accordance with decision of the Postmaster General dated Dec. 26,1883.”
    The decision of the Postmaster-General at that time in office, referred to in the last-mentioned orders, overruled and reversed the previous determination of the Post-Office Department, as above stated, that the lands granted to the claimant in the third section of the act of May 5,1864, were not granted upon the condition that the mails should be transported over its railroad at such price as Congress should by law direct, and that section 13 (or land-grant section) of the act of July 12, 1876, had no application whatever to its railroad from Stevens Point to Ashland and from Stevens Point to Portage. The Post-Office Department, under five Postmasters-General, in its business with the claimant as a mail carrier, had acted for over seven years upon that view of the subject. The claimant protested against the said decision and orders of the said Postmaster-General so reducing its compensation for carrying the mails between Stevens Point and Ashland and computing the same upon the land-grant basis, upon the grounds and for the reasons set forth in its protest and argument dated October 16,1880, on file in the Post-Office Department and mentioned in finding vi.
    VIII. The claimant carried the mails on its railroad over said route 25017, between Stevens Point and Ashland, from July 1,1883, to tbe time of tbe commencement of tbis suit, and bas been allowed and paid by tbe Post-Office Department for that service only eighty per centum of tbe compensation authorized by law to be paid for such service to nonland-grant roads, and which would have been allowed and paid for tbe service during that time if tbe said railroad bad not been treated by tbe Post-Office Department, as aforesaid, as a so-called land-grant road, within and subject to tbe provisions of section 13 of tbe act of July 12,1876.
    Tbe difference between the amount which tbe claimant would have received as compensation for its service in carrying tbe mails between Stevens Point and Ashland from July 1,1883, to March 31, 1887, if it bad been computed on a non land-grant basis and tbe amount actually paid to and received by tbe claimant for that service is $15,023.70.
    TIT. Tbe following orders were made by tbe Post-Office Department at tbe dates named in relation to tbe transportation of tbe mails by tbe Phillips & Colby Construction Company, operating tbe Wisconsin Central Eailroad, on route 25027 (25015), from Stevens Point, by Hancock, to Portage City, from March 1,1876:
    “[1876. Feb’y7. Order 1104.]
    “Order tbe transportation of mails, under route No. 25027, on tbe Wisconsin Central E. E., by the Phillips &• Colby Construction Co., E. B. Phillips, president, from Stevens Point, by Plover, Buena Yista, Pine Grove, and Plainfield, to Hancock, 29.60 miles and back, six times a week, or as much oftener as trains may run, from March 1,1876, with tbe understanding that tbe rate of compensation shall afterwards be determined according to tbe grade of tbe service, to be shown by tbe usual returns, to be furnished within twelve months from tbe date of tbe commencement of tbe service.
    “ [1876. Nov. 17. Order No. 6213.]
    “ Extend service from Hancock, by Coloma, Liberty Bluff, Ordino, Westfield, Packwaukee,' Moundville, and Corning, to Portage City, making tbe total distance 77.93 miles and back, six times a week, or as much oftener as tbe trains may run, from Dec. 1,1876, with tbe understanding that tbe rate of compensation shall afterwards.be determinded according to the grade of service, to be shown by tbe usual returns, to be furnished within twelve months from the date of tbe commencement of tbe service, according to tbe acts of Mareb 3, ■1873, and July 12, 1876.
    
      “ [1877. June 13. Order No. 2972.]
    “Modify order of November 17,1876 (No. 6213), so as to read 73.23 miles instead of 73.93 miles.
    “ Brady.
    “[1877. Dec. 12. Order No. 7147.]
    “Authorize the Auditor to pay for service from Stevens Point to Hancock, from March 1 to June 30,1876, at the rate of $1,598.40 per annum, being $54 per mile for 29.6 miles, under act of March3, 1873; and from July 1,1876, authorize payment at the rate of $1,438.56, being 48.60 per mile, an abatement of 10 per cent, under act of July 12,1876. And increase pay from December 1, 1876, $2,120.41, making the annual pay from that date $3,558.97, being $48.60 per mile for 73.23 miles, from Stevens Point to Portage City.”
    The Phillips & Colby Construction Company was duly paid in full for carrying the mañs as aforesaid on route 25027 (25015) between Stevens Point and Portage to September 30, 1877, according to the rates named in said orders, no deduction being made by the Post-Office Department on account of land grant, as under section 13 of the act of July 12,1876.
    X. The following orders were afterwards made by the Post-Office Department on the dates named in relation to the pay of the Wisconsin Central Bailroad Company for carryingmails on said route 25017 (25015) between Stevens Point and Portage City:
    “[1877. Dec. 27. Order No. 7505.]
    “ E. B. Phillips, president of the Phillips & Colby Construction Company, operating the Wisconsin Central B. B., reports the turning over to the Wisconsin CentralB. B. the entire railroad owned and heretofore operated by the P. & C. Construction Company.
    “ Charles L. Colby, president of the Wisconsin Central B. B. Co., reports the appointment of Mr. E. B. Phillips as agent of the W. C. B. B. Co., and requests that hereafter payments be made to him.
    “ Address and pay accordingly.
    “ [1878. July 31. Order No. 6139.]
    “Authorize the Auditor to decrease the pay of the Wisconsin Central Bailroad Company for carrying the mails between Stevens Point and Portage from July 1,1878, to June 30,1879, at the rate of $177.95 per annum, leaving the pay from thatdate $3,381.02 per annum, $46.17 per mile, being a reduction of five per centum from the rates fixed for weight of mails in accordance with the act of June 17,1878.”
    The claimant carried the mails over said route 25027 between- Stevens Point and Portage City from December 27, 1877, to June 30,1879, and was duly paid in full for the service at the rates named in the orders set forth in finding ix, and in this finding from September 30,1877, to June 30, 1879, no deduction being made by the Post-Office Department on account of land grant as under section 13 of the act of July 12,1876.
    XI. The following order was made by the Post-Office Department on September 23,1879, in relation to the pay of the claimant for carrying the mails on its railroadover route 25015 between Stevens Point and Portage, for the term of four years from July 1, 1879, to June 30,1883:
    “[1879. September 23. Order No. 9531.]
    “Authorize the Auditor of the Treasury for the Post-Office Department to pay the Wisconsin Central Eailroad Company, quarterly, for carrying the mail between Stevens Point and Portage, from July 1, 1879, to June 30,1883, at the rate of $3,634.94 per annum (being $49.59 per mile per annum for 73.30 miles) unless otherwise ordered, subject to fines and deductions.”
    Afterwards the following orders were made at the date given:
    “ [1880. June 2. Order No. 5916.]
    “Amend order of Sept. 23,1879 (No. 9531), so as to pay for service from July 1,1879, at the rate of $2,908.54 per annum being $39.68 per mile for 73.3 miles (land grant).
    “ This revision of pay is in accordance with the advice of the Assistant Attorney-General.
    “ [1880. June 2. Order No. 5919.]
    “Amend order of Dec. 12,1877 (No. 7147) so as to pay for service between Stevens Point and Hancock from July 1,1876, at the rate of $1,150.84 per annum, being $38.88 per mile for 29.6 miles, and so as to make the whole pay from Dec. 1,1876 at the rate of $2,847.18 per annum, being $38.88 per mile for 73.23 miles.
    “And amend order of July 31,1878 (No. 6139), so as to pay for service from July 1.1878, to June 30, 1879, at the rate of $2,705.11 per annum, being $36.94 per mile for 73.23 miles • (land grant).
    
      “This revision, of pay is in conformity with the advice of the Assistant Attorney-General.”
    The claimant protested against the said orders of June 2, 1880, and the deductions from its pay consequent thereon, as stated in finding yi, and in accordance with the opinion of the law officer of the Post-Office Department, dated January 24, 1881, mentioned in that finding, the Postmaster-General, on January 26,1881, made two several orders, recalling said orders of June 2,1880, as follows:
    “ [1881. Jan. 26. Order No. 845.]
    “ Eecall order of June 2,1880 (No. 5916), in accordance with decision of law officer dated Jan. 24,1881.”
    “ [1881. Jan. 26. Order No. 848.]
    “Eecall order of June 2, 1880 (No. 5919), in accordance with decision of law officer dated Jan. 24,1881.”
    The claimant carried the mails on its railroad over said route 25015 between Stevens Point and Portage City from Julyl, 1879, to June 30, 1883, and was paid in full for that service, by the Post-Office Department, at the rate named in the said order of September 23,1879, no deductions being made by the Post-Offi.ce Department, on account of land grant, as under section 13 of the act of July 22,1876.
    SIX. The following order was made by the Post-Office Department at the date named in relation to the pay of the claimant for carrying the mails on said route 25015, between Stevens Point and Portage, for another term of four years, from July 1,1883, to June 30,1887:
    “ [1883. Sept. 6. Order No. 13703.]
    “ Pay the Wisconsin Central Eailroad Company, quarterly, for carrying the mail between Stevens Point and Portage, from July 1, 1883, to June 30,1887, at the rate of $4,399.57 per annum, being $59.85 per mile for 73.51 miles, for transportation.”
    The claimant carried the mails on its railroad over said route, between Stevens Point and Portage, from July 1,1883, to March 31, 1887, and was paid in fall for the service, at the rate named in the said order, from July 1, 1883, to September 30, 1885, without any reduction thereof or deduction therefrom, on account of land grant, as under section 13 of the act of February 12,1876.
    
      The following orders were afterward made by another Postmaster-General at the dates given:
    “[1885. October 21. Order No. 15155.]
    “Amend order of September 6,1883 (No. 13703), so as to pay for service on this route from July 1,1883, at the rate of $3,519.65 per annum, being $47.88 per mile for 73.51 miles land grant.
    “ [1885. October 21. Order No. 15156.]
    “ Bescind order of January 26, 1881 (No. 845).
    “[1885. October 21. Order No. 15157.]
    “Bescind order of January 26, 1881 (No. 848).”
    After said orders, the claimant was paid by the Post-Office Department for carrying the mails on said route 25015 from October 1,1885, to March 31, 1887, at the rate named in the said order of October 21,1885, No. 15555, being only eighty (80) per cent of the compensation fixed by the said order of September 6, 1883, No. 13703, and authorized by law to be paid for such service to non land-grant roads.
    The amount of twenty (20) per cent so deducted from the pay of the claimant for the said service from October 1, 1885, to March 31, 1887, and withheld from it, on account of land grant, under the said order of October 21,1885, No. 15155, is $1,319.88.
    XIII. On September 30,1885, that is to say at the end of the third quarter of that year, there was found by the Post-Office Department to be due the claimant the sum of $8,977.69 as its compensation for-its service in carrying the mails during that quarter over the whole of route 25017, between Menasha and Ashland, including the part between Stevens Point and Ashland and over route 250Í5 between Stevens Point and Portage.
    The Auditor of the Treasury for the Post-Office Department, under the authority of the said orders of the Postmaster-General dated June 2,1880, No. 5919, June 2,1880, No. 5916, and October 21, 1885, No. 15155, in November, 1885, instead of paying the claimant the said sum of $8,977.67, deducted from the same, and withheld from the claimant, the sum of $6,808.62, equal to 20 per centum of all the amounts theretofore allowed and paid the claimant and the Phillips & Colby Construction Company by the Post-Office Department as compensation for carrying the mails on route 25015 between Stevens Point and Portage, during the whole of the period from July 1,1876, to September 30,1885, and paid the claimant only the sum of $2,169.07 in respect to its compensation for its service on said routes for the third quarter of 1885.
    XIY. From July 1, 1876, to December 27, 1877, the mails were carried on said route 25015 (25027), Stevens Point to Portage, by the Phillips & Colby Construction Company, and the compensation for such service to September 30, 1877, amounting to $3,567.12, was duly paid to said construction company. The sum deducted from the compensation of the claimant for the third quarter of 1885, as stated in finding xin, on account of payments made to the Phillips & Colby Construction Company for its service on the said route from July 1,1876, to September 30, 1877, was $713.42.
    XY. On March 31,1887, that is to say, at the end of the first quarter of that year, there was found by the Post-Office Department to be due the claimants the sum of $17,515.42, as its compensation for its services in carrying the mails from October 1, 1886, to March 31, 1887, over the whole of route 25017 between Menasha and Stevens Point, and over route 25015 between Stevens Point and Portage. The Auditor of the Treasury for the Post-Office Department, under the authority of the said orders of the Postmaster-General dated June 2, 1880, No. 5917, and June 2, 1880, No. 5918, in May, 1887, instead of paying the claimant the said sum of $17,515.42, deducted from the same and withheld from the claimant the sum of $12,172.61, equal to 20 per cent of all the amounts theretofore allowed and paid the claimant and the Phillips & Colby Construction Company by the Post-Office Department as compensation for carrying the mails on route 25017between Stevens Point and Ashland during the whole of the period from July 1,1876, to June 30,1883, and paid the claimant only the sum of $5,342.81 in respect to its compensation for its service on said routes for the fourth quarter of 1886 and the first quarter of 1887.
    XYI. From July 1, 1876, to December 27, 1877, the mails were carried on said route 25017 between Stevens Point and Ashland by the Phillips & Colby Construction Company, and tbe compensation for sucb service to September 30, 1877, amounting to $12,398.89, more or less, was duly paid to tbe agent of tbe said construction company. Tbe sum deducted from tbe compensation of tbe claimant for tbe fourth quarter of 1886 and tbe first quarter of 1887, as stated in finding xv, on account of payments made to tbe Phillips & Colby Construction Company for its service on tbe land-grant portion of tbe said route 25017 from July 1, 1876, to September 30,1877, was thus $1,765.38.
    XVII. Tbe deductions, respectively, made from tbe pay of the claimant by tbe Post-Office Department, as stated in tbe preceding findings xii xm, and xv, were not made on account of any mistake of fact in tbe orders under which payments bad been previously made by that Department, but on account of supposed error of law therein as to tbe legal construction and effect of tbe said act of Congress of May 5,1864, chapter 80, under which tbe claimant received its grant of lands to aid in tbe construction of its railroad, in connection with tbe thirteenth section of tbe said act of Congress of July 13, 1876.
    XVIII. Tbe claimant has not acquiesced in tbe reductions of its pay for mail service or tbe deduction therefrom made by tbe Post-Office Department, as above stated, but has protested against tbe same.
    XIX. Tbe amounts of tbe 20 per cent reductions of tbe pay of claimant, deducted quarterly, as under section 13 of tbe act of July 12, 1876, are as follows:
    On route 25017 from July 1, 1883, to March 31, 1887. $15,023.70
    On route 25015 from October 1, 1885, to March 31, 1887. 1,319.88
    16,343.58
    The deductions, November, 1885, from tbe pay of claimant on routes 25017 and 25015, for third quarter of 1885, for tbe purpose of recovering amount of alleged overpayments to claimant on route 25015 from July 1, 1876, to September 30,1885, were as follows:
    Twenty per cent of moneys paid to Phillips & Colby Construction Company from July 1, 1876, to September 30, 1877. $713.42
    Twenty per cent of moneys paid to claimant from September 30, 1877, to September 30, 1885 . 6,095.20
    6,808.62
    
      Tbe deductions, May, 1877, from tbe pay of claimant, on ronte 25017 and 25015, for fonrtb quarter of 1886 and first quarter of 1887, for tbe purpose of recovering amount of alleged overpayments to claimant on route 25017 from July 1,1876, to June 30,1883, were as follows:
    Twenty per cent of moneys paid to Phillips & Colby Construction Company from July 1, 1876, to September 30, 1877. $1,765.38
    Twenty per cent of moneys paid to claimant from September 30, 1877, to June 30,1885. 10,407.23
    12,172.61
    Of tbe above deductions $3,970 was for alleged overpayment on account of services rendered by tbe Phillips & Colby Construction Company between September 30, 1877, and December 27, 1877.
    
      Mr. J. B. Asliton and Mr. L. H. Brandéis for tbe claimant:
    Tbe fact that a requirement that tbe mails should be carried over tbe roads at prices to be determined by Congress is not expressed by a provision to that effect in tbe act of 1864 is conclusive that no sucb requirement in respect to tbe roads described in tbe act exists, and that Congress did not intend to reserve tbe power to fix tbe price for mail transportation over those roads (Railroad Go. v. Baldwin, 103 U. S. E., 430.)
    It is impossible to doubt that tbe mail transportation provision in tbe act of 1856 was intentionally and advisedly omitted by Congress from tbe act of 1864, and that tbe whole and tbe only reservation of any peculiar right or privilege with regard to tbe railroads described in that act, designed to be made on behalf of tbe Government, is that contained in the fifth section of tbe statute, which secures to tbe Government tbe free use of tbe railroads “ for tbe transportation of any troops or property of tbe United States.’7
    It is a canon of construction peculiarly applicable, under tbe doctrines of tbe Supreme Court, .to Congressional land grants, that all words in a statute must be understood as used “in reference to tbe particular subject-matter in the mind of tbe legislature, and to it only” (Maxwell on Statutes, pp. 50, 54; Beydenfeldt v. Mining Go., 93 U. S. E., 636; Minis V. United States, 15 Pet., 445; United States v. Union Pacific B. B. Go., 91 ü. S. E., 85; Platt v. Union Pacific B. B. Go., 99 U. S. E., 60; Mo. etc., B. B. Go. V. Kansas P. B. B. Go., 97 U. S. E., 497; 
      Lake Superior and Miss. B. B. Go. v. United States, 93 U. S. B., 442.)
    But should it be thought that the natural import and effect of the words of the third section of the act of 1864, “upon the same terms and conditions,” etc., as they stand in that section, are not as obvious as we have supposed them to be to the'legal mind, an examination of all the provisions of the act of 1804, in connection and comparison with those of the earlier statute, will show conclusively that Congress never intended that those words should have or receive the extensive application and effect sought now to be given to them by the G-overnmeiit, and never proposed, by means of them, to incorporate into the act of 1864 the provision of the fifth section, or mail transportation section, of the act of 1856, which was purposely left out of the act of 1864.
    The Supreme Court has said more frequently perhaps than any other court, that “the intention of the lawmaker constitutes the law;” that every statute must be so construed as to “give effect to the object designed, and for that purpose all of its provisions must be examined in the light of attendant and surrounding circumstancesand that the court is bound to restrain the operation of a statute “withiu narrower limits than its words import if it is satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it.” (Smythe v. Mslce, 23 Wall., 380; Geofroy v. Biggs, 133 U. S. E., 269; In re Boss, 140 U. S. B., 475; Siemens v. Sellers, 123 U. S. B., 285; Brewer v. Blougher, 14 Pet., 198.)
    This was the view adopted and acted upon by the Post-Office Department and the accounting officers of the Treasury, contemporaneously with the act of July 12, 1876, and, through the administrations of five Postmasters-G-eneral, to December, 1883, when the new head of the Department gave the reverse interpretation to the act of 1864, though without claiming that the practice of his predecessors had been illegal, and attempting to reopen the payments made for past services, by charging the claimant with moneys allowed to it under the original view of the true construction of the statute of 1864.
    The attempt to enforce repayment of those moneys was made by still another Postmaster-G-eneral, after more than nine years had elapsed since the construction of that act maintained by the claimant was first adopted by the Post-Office Depart-' ment.
    Under the settled doctrine of the Supreme Court the burden lies heavily upon the defendant to prove that the original construction given to the act by the competent authorities of the Post-Office Department is plainly wrong, and can not be sustained as matter of law by this tribunal. The language of the Supreme Court in the recent case of United, States v. Alabama Great Southern Railroad Company, affirming the judgment and opinion of this court as pronounced by Judge bTott, is here strictly applicable. (142 U. S. B., 675.)
    A careful reading of the acts will enable any one readily to perceive that the act of 1864 was manifestly intended to be a complete enactment, covering and providing for the subject-matter of the act of 1856, and changing or qualifying the essential provisions of that act, not only by alteration and addition, but by omission as well, and thus designed to take the place of and supersede the earlier act.
    It was plainly the intention of Congress by the act of 1864 to revise the entire matters to which the acts have reference, to make such changes in the act of 1856 as it thought expedient, and to substitute its will in that regard entirely for the earlier act.
    The act embracing what was intended to be preserved of the earlier act and omitting what was not so intended was substituted by Congress for that act.
    The mail transportation provision in the act of 1856, omitted from the act of 1864, ceased to have any operation when the" latter act was approved.
    It was in legal effect superseded, displaced, or virtually repealed by the act of 1864. (Murdoch v. Memphis, 20 Wall., 617; United States v. Claflin, 97 U. S. E., 550, 552; King v. Cornell, 106 U. S. B., 396-398).
    The great fact which stares us in the face, and to which we are bound to give legal effect, is the entire omission from the act of 1864 of the important provision in the fifth section of the earlier act,.in regard to the transportation of the mails of the United States, or any similar provision on that subject, and the inclusion in the eighth section of the act of 1864 of the other important provision in regard to the transportation of tbe property and troops of tbe United States, wbicb is found in tbe third section of tbe act of 1856.
    There can be no more reason to doubt that, by entirely omitting tbe mail transportation provision of tbe earlier act from tbe act of 1864, Congress actually intended to declare its will that the railroads proposed by that act should not be subject to tbe obligation to transport tbe mails of the United* States at prices to be fixed by Congress than there is that by inserting in that act tbe other provision in tbe earlier act Congress meant to require that those roads should be used for the transportation of tbe property and troops of tbe United States free from toll or other charge.
    An undertaking to carry tbe mails at such price as Congress might by law direct, if assumed by tbe companies under tbe act, was an obligation with wbicb they could.not refuse to comply without subjecting themselves to claims for damages on tbe part of tbe Government, and possibly to a forfeiture of tbe grants. (Jacksonville, etc., It. JR. Co. v. United States, 118 U. S. E., 627.)
    If it bad been tbe purpose of Congress to impose an obligation of that character and magnitude upon tbe companies it would have so stated, as we have tbe right to assume and can not well be doubted, in express and unequivocal language.
    Tbe interests of tbe Government and justice to tbe railroad company alike required, if there was any thought of reserving to tbe United States tbe right to have tbe mails perpetually carried at prices to be fixed by Congress, that such a reservation should be made in as distinct terms as were employed in reserving tbe right to use tbe railroad as a public highway for tbe transportation of the property of tbe United States.
    Tbe express provision contained in tbe third section of the act of 1856 was repeated substantially totidem verbis in tbe eighth section of tbe act of 1864, because Congress proposed to reserve the right to use tbe roads for the transportation of the property and troops of tbe United States free of any charge, and because Congress knew that the'right referred to was not intended to be reserved, and considered that it would not be reserved, by the general words, “ upon the same terms and conditions,” etc., contained in the granting section of the act of 1864, and without an express provision in tbe act making a reservation of that right on behalf of tbe United States.
    
      Thus Congress itself has given its own construction and exposition to tbe words referred to in tbe third section of tbe act of 1864, and bas in effect told us that it bad no intention in using those words to refer to tbe mail transportation provision in tbe fifth section of tbe act of 1856 any more than to tbe provision in tbe third section of that act in respect to tbe transportation of tbe property and troops of tbe United States.
    Both of those provisions stand precisely on tbe same footing; and if there was no design on the part of Congress to include one of them in tbe words of tbe third section of tbe act of 1864, in question, there was no intention on its part to embrace tbe other within tbe meaning and application of those words.
    Tbe intention of Congress not to apply tbe words in question to tbe mail transportation provision in tbe act of 1856 is, in fact, u as obvious as tbe light, and requires as little reasoning to prove its existence.” (Mr. Justice Johnson, United States v. Palmer, 3 Wheat., 634.)
    Any interpretation of tbe words in question, therefore, which bolds that they effectually incorporate into tbe act of 1864 tbe mail transportation clause in the earlier act, in tbe absence of an express provision on tbe subject, serves to defeat what must be deemed tbe actual and real intention of Congress, when it deliberately omitted any provision in regard to mail transportation from tbe act of 1864.
    Tbe fact that tbe construction contended for by tbe defendants involves tbe provisions of tbe act of 1864 in contradictions and repetitions shows not only what is otherwise obvious, as already seen, that Congress by design omitted from tbe act tbe mail transportation provision inserted in tbe act of 1856, but also that such a construction can not be deemed to conform to tbe meaning of tbe words in question as used in tbe third section of tbe act.
    Tbe rule is well settled that where there is any doubt as to tbe meaning of tbe words of a statute they should receive such a construction as will give consistency and harmony to all tbe provisions of tbe law, and prevent them from being repugnant, inconsistent, or nugatory, if that be practicable. (Geofroy v. Biggs, 133 U. S. E., 269, 270; In re Boss, 140 U. S. E., 475.)
    Tbe construction and application thus given to tbe particular words in section 3 of tbe act of 1864 are required by the other pertinent principles of statutory interpretation.
    Where general words of reference, which if literally interpreted would refer to the whole of an act, appear from the entire statute to be intended to refer only to a particular section their meaning must be limited accordingly, and in determining this question the subject-matter of the section will be considered. (Sutherland on Statutory Construction, secs. 216, 239, 257, 299; Afkins y. Disintegrating Go., 13 Wall., 301; Minis y. United States, 15 Pet., 446; In re Cambrian Go., L. E., 3 Oh. Appeals, 297; Danville It. B. Go. v. Comm., 93 Pa. St., 29.)
    Where the general intent or scheme, apparent from the whole act, is inconsistent with any particular section or clause, the latter must be construed so as to harmonize with the former. (Sutherland, sec. 216/ Dbbs y. Boulmms, L. E., 10 Ch. Appeals, 479; People y. Davenport, 91 N. Y., 574, 585.)
    In the present case the words, ‘-upon the same terms and conditions as are contained in the act of 1856,” are (if taken to mean that all the provisions of the act of 1856 are to be imported into the act of 1864) inconsiste at with the general intent shown in the latter act, for the legislature immediately proceeded to take up the succeeding sections of the act of 1856, and to reenact or modify them, until it reached the mail transportation section, the last in the act.
    To contend that the words quoted were meant to refer to those succeeding sections (and of course, as has been before said, if it referred to one it referred equally to all) is to suppose that the legislature first declared that the grant was to be on the same terms, and then proceeded to alter those terms.
    On the contrary, the apparent intent of the legislature was that the grant should not be on the “ same terms and conditions,” if those words are taken to mean all the provisions of the act of 1856, but on quite different terms and conditions.
    The particular words, therefore, must be construed to conform to this general intent or scheme of Congress, viz, a specification of the provisions to be annexed to the grant.
    Nor can this result be attained by construing them to mean all the succeeding sections of the act of 1856 not modified in the act of 1864, because, as has been observed, Congress expressly repealed several of them without any modification, in-eluding tbe provision tor transporting troops and property of tbe United States.
    In order, therefore, to give effect to tbe general intent of Congress in tbe construction of tbe act, those words must be referred and limited to tbe terms of tbe corresponding (tbe first) section of tbe earlier act, which are not repeated, except where it is necessary to repeat them for tbe purpose of defining anew tbe amount of tbe grant and of including mineral lands within tbe scope of tbe tbe third proviso.
    If there are two statutes in pari materia, tbe express reenactment in tbe later act of one of tbe provisions in tbe earlier act will prevent cognate provisions not so repeated from being-continued in force by implication. (McBoberts v. Washburn, 10 Minn., 23.)
    Tbe construction contended for by the claimant is in accordance with the presumed intent of Congress, as evidenced by the history of tbe act.
    Tbe construction contended for by claimants is in harmony with tbe practice of Congress. Where more than one land-grant act has been passed to aid in tbe building of a road, Congress has usually repeated tbe mail-transportation clause in each act. See, e. g., Act of March 3,1857 (11 Stat. L., 195); Act of March 3, 1865 (13 Stat. L., 526). Congress has frequently aided railroads by land grants without inserting tbe mail-transportation clause in tbe granting act.
    
      Mr. John G. Chaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    Tbe question, accurately stated, to be determined is: Was tbe grant which tbe claimant company received and accepted charged with tbe terms and conditions that tbe Congress might prescribe tbe rate which should be paid for carrying tbe mails? Government interpretation of the matter has not been uniform, and hence tbe necessity of attention to tbe position assumed by certain legal advisers of tbe Post-Office Department in tbe administration of tbe matters touching tbe transportation of tbe United States mails over tbe claimant’s lines of road. Tbe view was taken by one legal adviser of tbe Post-Office Department that, in tbe opinion of Judge Harlan in a case pending in Wisconsin some years ago, a certain interpretation was given to tbe act of 1864 and to tbe words “upon tbe same terms and conditions as are contained in tbe act granting lands to said State to aid in tbe construction of railroads in said State, approved June 3, 1856,” wbicb frittered away tbeir significance and absolved tbe company from tbe terms or conditions of tbe act of 1856, wbicb expressly declared tbat tbe mail shall be transported over said roads at sucb price as Congress may direct. Tbe act of 1856 is set out in full at pages 26 and 27 of tbe record, and at pages 26 to 30, inclusive, will be found tbe act of 1864. Tbe portion of tbe opinion from wbicb tbis doctrine is extracted is as follows:
    In tbe Circuit Court of tbe United States, western district of Wisconsin, in the suit of The Madison and Portage Railroad Company, complainant, v. The Treasurer of the State of Wisconsin, The Wisconsin Central Railroad Company et al.} defendants, Mr. Justice Harlan debvered an opinion several years ago, concurred in by Mr. Justice Drummond and Mr. Justice Bunn, wbicb involved to some extent tbe effect of tbe legislation of May 5,1864, upon tbe act of June 5, 1856.
    By reference to tbat opinion it will, we submit, be seen tbat no doctrine is there laid down tbat reaches or leads to tbe conclusion tbat is contended for. ' Tbe grant to tbis road was a new grant; not tbe widening of a former grant. It gave tbe State, for ten sections in width on each side of tbe road, every alternate section, upon tbe same terms and conditions as are contained in tbe act granting lands to said State to aid in tbe construction of railroads in said State approved June 3, 1856. In short, it gave tbe ten sections in 1864 upon tbe same terms and conditions as it gave tbe six sections in 1856. Nothing can be plainer than tbat “ condition ” contended for attaches, for tbe act of 1864 expressly says so, by particularly referring to tbe act of 1856. There were in tbe act of 1864 some requirements, some provisions as to disposal, not contained in or different from tbe act of 1856. As to these, of course tbe two acts must be construed together. But there is nothing in tbe act of 1864 wbicb renders nugatory these qualifying words, so far as they affect tbe conditions or terms of tbe former act, tbat tbe mails shall be carried at sucb rates as Congress may fix. These qualifying words are not meaningless. They must, in construction, be given some meaning and effect. Tbat some of tbe terms of tbe former act can not consist with tbe terms of tbe act of 1864, prescribing a different method of disposal. only tends to render more apparent tbe conditions that the mails were to be carried at the rate Congress might fix, and that such u condition ” was intended to be attached to this grant. If there be four conditions in the grant of 1856, and the act of 1864 attaches three conditions which can not stand together with those of the first act, so that three conditions of the first act can not be required, is it sound interpretation to say that the fourth condition, which is entirely unaffected by the latter act, has also been frittered away, and that the clause, “ upon the same terms and conditions as are contained in the former act” is thereby meaningless?
    Grants are construed strictly against the grantee, and nothing in the act of 1864 can be so construed or read as to show a purpose in Congress to release the grant from so important a condition as the one requiring the mails to be carried at such rates as Congress might determine. {Charles River Bridge v. Warren Bridge, 11 Pet., 420, 536; The Delawa/re R. R. Taoc, 18 Wall., 206 j Dubuque, etc., R. R. v. Litchfield, 23 How., 88; Leavenworth, etc., R. R. v. Galveston, etc., R. R. Co., 92 U. S. R., 73; Slidell v. Grandjean, 111 IT. S. R., 437.)
    Besides, it has been the policy of the Government with all the States and all the railroads within the States to require roads aided by a grant of lands to carry the United States mails at a price to be fixed by Congress, and that until Congress fixed a price the Postmaster-General should fix the price. Examine all the grants to aid railroads, and there is not an exception to this requirement. It is about the only substantial thing the Government gets for its immense gift. And to say that this particular line of roads is to be favored above all others, and that the policy of the Government is to be changed by this statute of 1864, is, to say the least, unreasonable, and 'certainly unfair to other States and other roads which have accepted such condition with alacrity. The Government is an indulgent father, but we shall not be so unfair to this father as to say that he is partial to certain of his children. The marriage portion is to all alike. ;
    There is also the question involved in this action as to the right of the Post-Office Department to readjust the accounts with claimant and to deduct from the pay of the company after it had once been allowed and paid for on the maximum basis the amounts formerly paid in excess of 80 per cent of the maximum rates; in other words, can the Treasury Department, upon the order of the present Postmaster-General, deduct from pay due for one period the amount legally settled and paid in a prior period on the order and allowance of a former Postmaster-General?
    Tlie right to make such deduction or offset is, we insist, clear.
    TheEevised Statutes give the Government a right of action to recover all moneys illegally paid by the Department out of the postal revenues, and direct that they be recovered back. (Eev. Stat., sec. 4057.)
    This section gives a right of action and commands action to be brought “ in all cases where money of the Department has been paid to any person in consequence of fraudulent representations, or by the mistake, collusion, or misconduct of any officer or other employé in the postal service.”
    The payment by mistake may be a mistake of law as well as of fact. (McHlrathv. United States, 12 O. Gis. E., 201.)
    This principle was considered in the case of EL E. Duvall, receiver of the Florida Eailway and Navigation Company against the United States, reported in volume 25 of the Court of Claims Eeports, pages 46 to 61, inclusive, and the position here contended for was upheld.
    Moreover, there was no settled rule of the Post-Office Department in regard to the interpretation of the act of 1864, as will appear from the “orders” of the Post-Office Department in regard to the matters at pages 20 to 25 of the record.
    It was positively unlawful to pay to the claimant the full authorized compensation for carrying these mails.
    The accounts of the complainant were running accoiints, subject to revision at any time before they were absolutely closed, and especially so in view of the vacillating treatment of the disputed question touching the condition upon which the claimant enjoyed the grant of land in aid of its road construction.
    There being a clear right of action, then, to recover these overpayments, the accounting officers of the Treasury, on the direction of the Postmaster-General, had a right to deduct the amount of the overpayments, illegally paid by mistake, from the moneys due the plaintiff company from the Government.
    “The United States possesses the general right to apply all sums due for such pay and emoluments to the relinquishment of any balances due to them by tbe defendant on any other account, whether owed by him as a private individual or as an officer. It is but the exercise of the common right which belongs to every creditor to apply the unappropriated moneys of his debtor in his hands in extinguishment of the debts due him. (Gratiot v. United States, 15 Pet., 336; McKnight v. United States, 98 U. S. E., 186, Bónnafer v. The United States, 14 C. Ols. E., 489.)
   Nott, J.,

delivered the opinion of the court:

The Land Grant Act 5th May, 1864 (13 Stat. L., p. 66, sec. 3) provides that the lands thereby granted to the State of Wisconsin, “for the purpose of aiding in the construction of a railroad” in that State, are granted “upon the same terms and conditions as are contained in the act grmting lands to said State to aid in the construction of railroads in said State, approved June 3, 1856.” (11 Stat. L., p. 20.)

That act contained this provision :

“That the United States mail shall be transported over said roads, under the direction of the Post-Office Department, at such prices 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.” (Act 1856, sec. 5.)

The case depends upon the single question whether this fifth section furnishes some of the terms and conditions intended by the act of 1864.

The purpose of the act of 1864 was to confer upon a private corporation an enormous grant of public lands in consonance with the policy of the times. All that it is entitled to in the way of interpretation is that it shall be fairly construed, so as to confer'upon the grantees all the benefits which are plainly indicated by its provisions.

In the act of 1856 there appear, following the clause which created the grant, “seven substantive provisions,” as they have been termed by counsel, the last of which, above quoted, is that the mails shall be transported at such price as Congress may by law direct.

The act of 1864, in like manner, declares a grant to the State, and declares it to be upon the terms and conditions contained in the act of 1856, and then follows these substantive provisions, some with modifications and some without, down to the seventh, as to which the act of 1864 is wholly silent.

It should be understood that the grant made by the act of 1856 is declared in its first section; tbat tbe first of tbe substantive provisions is to be found in a proviso to tbat section, and tbat tbe remaining substantive provisions appear in succeeding sections, tbe seventh being tbe fifth section of tbe act. In tbe act of 1864 tbe grant for this road is declared by tbe third section; tbe first substantive provision appears in tbe sixth, and tbe other five in succeeding sections.

On these statutory facts, it is contended by tbe counsel for tbe claimant tbat under a canon of construction, peculiarly applicable to land grants, words must be understood as used “in reference to tbe particular subject-matter in tbe mind of tbe legislature and to it only,” and tbat tbe specific subject-matter in tbe legislative mind at tbe time when tbe third section of tbe act of 1864 was framed was “tbe terms and conditions” to be found in tbe corresponding section of tbe act of 1856; tbat is to say, in tbe section which makes tbe grant — tbe first. It is therefore contended tbat tbe court can not search tbe succeeding sections for terms and conditions wherewith to satisfy tbe language or requirement of tbe third section.

Tbe first section of tbe act' of 1856 consists of tbe enacting clause and three provisos. Tbe third section of tbe act of 1864 is a repetition of tbe other (with changes of names and a few unimportant modifications of language), so far as it goes. Tbat is to say, it uses tbe same language, mutatis mutandis, and makes the same provisions up to a certain point, which is at tbe end of tbe first proviso, and there it stops. Beyond tbat point are two provisos, which contain tbe only matter not found in tbe third section of tbe act of 1864. In other words, if tbe reference to tbe same “ terms and conditions ” contained in tbe act of 1856 is to be satisfied by restricting it to tbe first section of tbat act, those terms and conditions must be found exclusively in tbe two following provisos:

“Provided further, (1) Tbat tbe lands hereby granted shall be exclusively applied to tbe construction of that road for which it is granted and selected; (2) and shall be disposed of only as tbe work progresses; (3) and tbe same shall be applied to no other purpose whatsoever.”
11 And provided further, Tbat any and all lands reserved to tbe United States by any act of Congress for tbe purpose of aiding in any object of internal improvement, or in any manner, for any purpose whatsoever, be, and the same are hereby, reserved to tbe United States from tbe operation of this act, except, so far as it maybe found necessary to locate the route of said railroad through such reserved lauds, in which case the right of way only shall be granted, subject to the approval of the President of the United States.”

The first clause of the first of these provisos furnishes no terms and conditions. The act of 1856 was “to aid in the construction of railroads,” and the first clause of the proviso merely restricts the benefits by requiring that the land granted “ shall be exclusively applied in the construction of that road for which it was granted and selected;” the third seetiou of the act of 1864 relates to a single designated road.

The second clause furnishes no terms and conditions, for the seventh section of the act of 1864 provides specifically that the lands granted shall be disposed of. The third furnishes no terms and conditions, for it is repeated in the eighth section of the act of 1864.

The second of these provisos furnishes no terms and conditions, for it is to be found, word for word, in the sixth section of the act of 1864. In a word, the third section of the act of 1864 follows the first section of the act of 1856, clause by clause, until the-first of the two provisos above quoted is reached, which, being inapplicable to the subject-matter of the enactment, is dropped, while the second of the two is transferred bodily to the latter statute and made the sixth section. If the construction contended for be given to the statute, not a single term or condition will be imported and made a part of it by the reference to the act of 1856.

Conceding that, of the seven substantive provisions found in the act of 1856, six corresponding ones are to be found in the act of 1864, and, in the words of counsel, that “ three of those six contradict provisions in the act of 3856, three are repetitions of the provisions of the act of 1856; while the seventh, being the mail-transportation provision in the fifth section of that act, is entirely omitted from the act of 1864 and dropped;” and that “one of the substantive provisions in the act of 1856 which are repeated and expressly reenacted in the latter act is that reserving to the United States the use of the roads for the transportation of its property and troops free of toll or other charge,” the statutory facts still remain that the construction contended for will reduce the clause of reference now under consideration to a piece of blank paper, expressing much and enacting nothing.

In substantially all cases of statutory obscurity or ambiguity there is a deficiency of expression, an ellipsis, in which a court must supply, by construction, the words necessary to express the legislative intent. We have here a statute saying that a grant is made “upon the same terms and conditions as are contained in the act” of1856. To attain» a practical result one of two readings must be adopted: Either we must read that the land spoken of is granted “upon the same terms and conditions as are contained in the act of 1856, including the fifth section thereof ” or else that the land spoken of is granted “not upon the same terms and conditions as are contained in the act of 1856, but only upon the terms a/nd conditions expressly prescribed by this, the act of 1864.” In other words, if the construction for which the claimant contends should be adopted, it would be giving to the statute, by interpretation, a meaning directly the reverse of that which its language expresses.

Moreover, the very able arguments which have been directed against the act of 1856 as a whole apply with even greater force to its first section. They, in effect, maintain that Congress, when framing the act of 1864, took three of the “seven substantive” provisions, changed them, modified them, and inserted them in the new statute; that Congress then took three more of the seven and reenacted them without change or modification, but that when they came-to the seventh, the section relating to the transportation of the mails, they dropped it, neither modifying nor reenacting it. Hence, that the reference to the terms and conditions must have been intended to be to the terms and conditions of the first section of the act of 1856, and not to the statute at large. But in precisely the same manner the third section of the act of 1864 passes through the first section of the previous act, taking from the enacting clause every provision which it contains, modifying one, repeating another, until the first proviso is reached. Then it adopts this first proviso as a proviso, changing only a single word; and then it stops and is silent as to the second and third provisos, before quoted. It is, therefore, manifest that the rule of construction, when applied to the-first section of the act of 1856, leaves the reference clause in the act of 1864 even more inoperative than it was before.

It is most undesirable that a public measure shall mean one thing when it is a bill before Congress and another when it is a statute before the judiciary. Canons of construction which may lead to this result are to be shunned. In the present instance, the terms and conditions which exact 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 direct,” could be read into the act of 1864 by any person of ordinary comprehension while it was still a pending bill; but it requires a good lawyer and an able argument to read the provision out of the statute.

The construction given to the act by the Post-Office Department and the decision of the Supreme Court in the Alabama and Great Southern R. R. Co. Case (142 U. S. R., 675) have been pressed upon the attention of the court by counsel and have been duly considered.

A contemporaneous and long-standing construction given to a statute by an Executive Department is to be treated with great respect, and is not to be overturned unless the legislative intent clearly and unmistakably requires that it be disregarded. But in the present case there has not been such a construction given to this statute, and if there had been, no injury was done thereby to the claimant in such a sense as should prevent the proper construction horn now being given. Where an Executive Department, charged with the administration of a law, gives to it an interpretation upon the faith of which the other party acts, a manifest wrong and injury will be caused by a subsequent judicial interpretation which leaves the party without redress. In the case of the Alabama and Great Southern Eailroad Company the service was voluntary;’ and if the construction for which the law,officers of the Government had contended had been asserted by the Post-Office Department at the proper time the railroad might have declined the service. The action of the Department did not constitute an estoppel, nor close the eyes of the'court to see the true construction of the act, but it furnished a very strong reason for upholding, if possible, the construction upon the faith of which both parties had acted. In the present case the claimant had no option; as a land-grant road it had to perform this service, and to perform it upon the terms prescribed by Congress. If the Postmaster General had given the same construction to the statute which the court now gives, the claimant could not have said, “We decline to perform, because tbe terms are not satisfactory to us and tbe remuneration is insufficient.” Tbe only effect wbicb tbe misinterpretation of tbe Post-Office Department bas caused is that tbe claimant^ by reason of overpayment, bas bad in its possession money wbicb it was not entitled to have, and that it bas bad it without tbe payment of interest.

When these points are passed, tbe case is ruled by tbe decision of this court in tbe case of Duval (25 C. Cls. R., pp. 46-69). Tbe claimant is entitled to recover for tbe moneys withheld from it because of overpayments made to tbe Phillips & Colby Construction Company, prior to tbe time when it, tbe claimant, obtained possession of tbe road and became a mail-carrier for tbe Post-Office Department.

Tbe judgment of tbe court is that tbe claimant recover of tbe defendants tbe sum of $6,448.80.  