
    NEVADA COUNTY NARROW GAUGE RAILROAD CO. v. THE UNITED STATES
    [No. F-222.
    Decided April 2, 1928]
    
      On the Proofs
    
    
      Mail pay; jurisdiction; determination T)y Interstate Commerce Commission; refusal of Government to pay; remedy.■ — See New Torio Central R. R. Co. v. United States, ante, p. 115.
    
      Same; authority of Interstate Commerce Commission to determine past compensation; allowance of interest. — Id.
    
      The Reporter’s statement of the case:
    
      Mr. Ben B. Cain for the plaintiff. Messrs. Clarence M. Oddie and Ben B. Cain, jr., were on the brief.
    
      Messrs. Lisle A. Smith and Joseph Stewart, with whom was Mr. Assistant Attorney’ General Merman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a corporation duly incorporated under the laws of the State of California and is a railway common carrier engaged in transportation of intrastate and interstate commerce by railroad, and has at all times borne true allegiance to the Government of the United States and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the United States.
    II. Pursuant -to authority of section 5 of the act of July 28, 1916, 89 Stat. 412, 427, making appropriations for the service of the Post Office Department for the fiscal year ended June 30, 1917, and for other purposes, the United States, through the Postmaster General, has since March 1,
    1920, when the service was placed on the space basis thereunder, including the period between July 1, 1921, and January 22, 1925, required the plaintiff to transport, and the plaintiff has transported, the United States mails on its railroad lines in the State of California under the conditions and with the service prescribed by the Postmaster General.
    III. Acting under the authority and requirements of said act of Congress the Interstate Commerce Commission by an order dated December 23, 1919, a copy of which marked Exhibit A is attached to the petition in this case and made a part hereof by reference, established the fair and reasonable rates of payment for transportation of mail matter by railroads subject to the act until further order or orders of the commission, including the plaintiff herein.
    IV. The plaintiff, with other railroad common carriers, filed with the Interstate Commerce Commission on June 30,
    1921, an application for a reexamination of. the“ facts and circumstances surrounding the transportation of the mails upon its line and the service performed by it in connection therewith as provided for further proceedings under said act and with special reference to the period since March 1, 1920, and prayed the commission by order to determine the fair and reasonable rates during said period and for the future and to order such readjustment of compensation for service rendered from March 1, 1920, to the date of its order.
    V. The Postmaster General filed his answer to the application of the railroads specifically objecting to a reexamination with reference to the period since March 1, 1920, and to the request for an order fixing rates of pay during said period and directing a readjustment of compensation for service rendered from March 1, 1920, to the date of an order to be made therein on the ground that such finding and order would be retroactive and in contravention of the rights of the Government under rates theretofore fixed by the commission for service required by the Postmaster General, performed by the carriers and fully paid for by the Postmaster General, and unauthorized by law.
    VI. Thereafter, the commission by order of August 1, 1921, reciting the provisions of the act, supra, providing that after the lapse of six months from the entry of an order the Postmaster General or any carrier may apply for a reexamination and that the plaintiff, the Nevada County Narrow Gauge E. E. Co., among others, had filed application for a reexamination of the facts and circumstances surrounding the transportation of United States mails upon their lines and the services performed by them in connection therewith with special reference to the period since March 1, 1920, ordered that the proceedings be reopened for reexamination and such further hearing as the commission might direct with respect only to the facts and circumstances surrounding the transportation of the mail and the services connected therewith upon the lines of the applicants.
    VII. In the proceedings had thereunder' new and additional evidence and testimony different from that submitted in the original case on which the commission’s order of December 23, 1919, was based, was submitted by all parties interested, based on reports of actual operation for the month of September, 1921, selected as a representative period, supplemented by other evidence.
    . VIII. Following the hearings instituted by the Interstate Commerce Commission on the application of the New England railroad mail carriers, in which the plaintiff did not join, the commission made a report on December 13, 1923, reciting, inter alia, “It is our opinion that in a proceeding upon application for a reexamination under the act of July 28, 1916, we have authority to establish rates only for the future and not for the past. The carriers’ request for' findings as to the past is therefore denied.” The commission issued an order establishing rates on and after December 13, 1923, but made no order as to the period prior to that date.
    
      IX. Following the hearings so instituted by the Interstate Commerce Commission on said application of the plaintiff herein and others, the commission made a report on January 22, 1925, containing its finding of facts and conclusions thereon as a basis for' an order stating, inter alia, “We are of the opinion and find that the rates of mail pay received by the applicant carriers for transportation of the mails on and after June 30, 1921, were not fair and reasonable, >nd that the fair and reasonable rates of pay to have applied for such service from said date were the rates herein established as the fair and reasonable rates of pay for the future.” This was a mere finding and did not purport to fix the rate stated in its order as for the future as applying to the period prior to January 22, 1925, the date of said order. Based upon said report the commission issued an order citing previous orders, the application of the railroads for a reexamination as provided by law, the reopening of the proceedings for reexamination with respect only to the facts and circumstances surrounding transportation of the mails and the services connected therewith upon .the lines of the applicants, and by order, copy of which is attached to plaintiff’s petition as Exhibit B, established as fair and reasonable rates to be received by the roads, including plaintiff, on and after January 22, 1925, a schedule of rates therein set forth. Thereafter, March II, 1925, the Postmaster General filed his petition for a rehearing and a revision of the finding with respect to the period on and after June 30, 1921, and prior to the date of the commission’s order of January 22, 1925, on the ground that the commission had no jurisdiction to make the same.
    X. On March 21, 1925, the attorney for plaintiff herein made demand upon the Postmaster General for the application of the new rates to the service performed from and after June 25, 1921, to which the Postmaster General replied that the rates fixed by the commission’s prior order were controlling upon the department, and that under the circumstances the department could not take any action towards recognizing any other rate than that which the Postmaster General is required to pay.
    
      XI. On July 29, 1925, plaintiff herein, together with other railroads concerned in the orders, made application to the commission to issue an order fixing and determining the rates for transportation of the mail by ,said carriers as of June 30, 1921, to January 22, 1925, the rates found for said period in the commission’s order of January 22, 1925. To this application the Postmaster General filed his reply, restating his position taken in his reply filed July 19, 1921.
    XII. The Interstate Commerce Commission made a report on December 8, 1925, affirming its previous findings as to rates, and issued an order that the rates established in its order of January 22, 1925, as the rates of pay to be received for the* transportation of mail matter by the carrier named in that order, be established as the fair and reasonable rates for the plaintiff herein for the period from June 30, 1921, to January 22, 1925, copy of which, marked “Exhibit C,” is attached to plaintiff’s petition in this case and made a part hereof by reference.
    On December 29, 1925, the attorneys for plaintiff and other carriers renewed their application to the Postmaster General for payment of the increased rates of mail pay between the dates of June 30, 1921, and January 22, 1925, in accordance with the commission’s order, to which the Postmaster General replied informing them that he had no authority of law to pay the same.
    XIII. On March 17, 1926, the Postmaster General made application to the Interstate Commerce Commission for a reconsideration of the decision by which it had established rates for the period from the date of the filing of the petition of the applicant carrier to the date of the order determining the rates for the future and accompanied said petition with a copy of the opinion of the Comptroller General of the United States, which application the commission denied.
    XIV. For the period between June 30, 1921, and January 22, 1925, plaintiff received from the United States for transporting the mails on its railroad, the sum of $8,917.10. The amount which would have accrued under the order of the Interstate Commerce Commission, dated December 8, 1925,' if valid, would be $17,954.20, which leaves a* balance, which is the subject of plaintiff’s claim, of $8,977.10.
    
      The court decided that plaintiff was entitled to recover $8,977.10.
   Campbell, Chief Justice,

delivered the opinion of the court:

This case was heard with that of the New York Central Railroad Company, lessee, No. F-339, decided this day (ante, p. 115), and the questions in the two cases are alike. We hold in this case: (1) That this court has jurisdiction because the asserted claim is founded on a law of Congress; (2) that the order of the Interstate Commerce Commission, objected to by the defendant, was a valid exercise of the commission’s authority under the act of July 28, 1916, 39 Stat. 412, and (3) that the plaintiff is entitled to judgment for the balance due for the period in question, but interest is not allowable. The opinion in the case above mentioned is applicable to this case. Judgment is accordingly awarded.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.  