United States v. Northern Pac. Ry. Co.

• Decision Date: 21 January 1929
• Docket Number: No. 8061.,8061.
• Citation: 30 F.2d 655
• Parties: UNITED STATES v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

30 F.2d 655 (1929)

UNITED STATES v. NORTHERN PAC. RY. CO.^*

No. 8061.

Circuit Court of Appeals, Eighth Circuit.

January 21, 1929.

O. R. McGuire, Sp. Asst. Atty. Gen. (Herman J. Galloway, Asst. Atty. Gen., and Lafayette French, Jr., U. S. Atty., of Austin, Minn., on the brief), for the United States.

M. L. Countryman, Jr., of St. Paul, Minn. (C. W. Bunn and D. F. Lyons, both of St. Paul, Minn., on the brief), for defendant in error.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and POLLOCK, District Judge.

VAN VALKENBURGH, Circuit Judge.

Defendant in error, plaintiff below, brought suit against the United States of America, defendant below, to recover the sum of $1.60 — the difference between a net per capita fare of $33.09, claimed by the plaintiff for transporting two members of the United States Marine Corps from St. Paul, Minn., to Seattle, Wash., and a net per capita fare of $32.29, paid for the transportation and accepted by the railroad company under protest. This suit is the result of a disagreement between the parties as to the proper computation of land grant deductions from the commercial fare over the route traveled. The case was tried upon an agreed statement of facts. The court ruled in favor of the railroad and entered judgment accordingly. In the stipulation as to the facts it was agreed that the Northern Pacific Railway Company is a corporation organized and existing under the laws of the state of Wisconsin, and is engaged in the operation of various lines of railroad into and through the states of Wisconsin, Minnesota, North Dakota, Montana, Idaho, Washington, and Oregon, and is a common carrier of freight and passengers. It maintains its principal operating and business offices in the city of St. Paul in the state of Minnesota.

"The plaintiff is the successor in title and interest to the properties of the Northern Pacific Railroad Company, a corporation which was created by `An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound, on the Pacific Coast, by the northern route.' By said act, approved July 2, 1864 (13 Stat. 365), the Northern Pacific Railroad Company was `authorized and empowered to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line, with the appurtenances, namely, beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin; thence westerly by the most eligible railroad route, as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude to some point on Puget's Sound, with a branch, via the valley of the Columbia river, to a point at or near Portland, in the state of Oregon,' etc.

"The Northern Pacific Railroad Company, as authorized by the Act of July 2, 1864, was required to be `constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turnouts, stations, and watering places, and all other appurtenances, including furniture, and rolling stock, equal in all respects to railroads of the first class, when prepared for business.' For the construction of the proposed railroad and telegraph, the Northern Pacific Railroad Company was granted `the right of way through the public lands to the extent of two hundred feet in width on each side of said railroad where it may pass through the public domain, including all necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turntables, and water stations.' It was also granted certain alternate sections of land on each side of the right of way `for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway.' The act further provided `that said Northern Pacific Railroad, or any part thereof, shall be a post route and a military road, subject to the use of the United States, for postal, military, naval, and all other government service, and also subject to such regulations as Congress may impose restricting the charges for such government transportation' with the further provision `that the said company shall not charge the government higher rates than they do individuals for like transportation and telegraphic service.'"

The original line of railroad under the Act of July 2, 1864, was from Ashland, Wis., on the shores of Lake Superior, through Brainerd, Minn., and Meeker, Wash., to Tacoma, Wash., on Puget's Sound. Later a line of railroad, now owned and operated by the Northern Pacific Railway Company, was constructed between St. Paul, Minn., and Brainerd, Minn., intersecting the original line at the latter point; this line, prior to its acquisition by plaintiff, had been constructed by various corporations and the portion thereof between Watab and Brainerd had been granted lands in aid of that construction. The plaintiff company also operates by lease over a land grant railroad between St. Paul and Minneapolis, a distance of 8.23 miles. In the year 1890 the Northern Pacific Railroad Company, plaintiff's predecessor, purchased a line of railroad from Meeker, Wash., a point on its original line, to Seattle, Wash. The total line of railroad between St. Paul and Seattle, through Brainerd, Minn., and Meeker, Wash., contains 1,962.21 miles of road, of which 1,855.67 miles were constructed by aid of grants of lands subject to the conditions hereinabove stated as to government transportation, the ratio of land grant to the total length of the road being 47.285 per cent. We quote from paragraph 8 of the agreed statement of facts:

"After the construction of the original line between Ashland, Wis., and Tacoma, Wash., and the construction of the line from St. Paul to Brainerd as set forth above, a cut-off line was constructed in 1889 from Little Falls, Minn., to Staples, Minn., a distance of 33.90 miles, as compared with the route between Little Falls and Staples via Brainerd, a distance of 60.64 miles. Since the construction of this short line between Little Falls and Staples, the route via Brainerd has been used for local traffic exclusively; the through traffic from St. Paul to the Pacific Coast being routed via the shorter line between Little Falls and Staples. In the year 1890 the Northern Pacific Railroad Company, plaintiff's predecessor, acquired by purchase a line of railroad from Meeker, Wash., a point on its original line, to Seattle, Wash., and in 1902 plaintiff constructed a cut-off from Palmer Junction, Wash., to East Auburn, Wash., which has since been used for transcontinental train service instead of the original mileage from Palmer Junction via Meeker, Wash., and has reduced the mileage from Palmer Junction to Seattle, Wash., to 44.3 miles, instead of 64.20 miles. By the use of the cut-offs between Little Falls and Staples and between Palmer Junction and East Auburn, the distance traveled by through trains from St. Paul to Seattle is only 1,914.57 miles, of which 1,761.43 miles is land-aided mileage."

The ratio of land grant to the total length of the road computed by this route is 46.001 per cent. From the foregoing it will be seen that the mileage traversed by through trains between St. Paul, Minn., and Seattle, Wash., has been reduced from the original mileage by 47.64 miles and the land grant mileage by 94.24 miles. Pursuant to the power to regulate charges for government transportation conferred by the Act of July 2, 1864, Congress has provided that the rate for such transportation shall not exceed 50 per cent. of the full amount of compensation computed on the basis of the tariff or lower special rates for like transportation performed for the public at large. Under Joint Military Passenger Agreement No. 2, effective July 1, 1924, the government is entitled to an additional 3 per cent. reduction from the rates charged the public at large. The contentions of the parties respecting the proper deductions to the government from the commercial fare is thus stated in the stipulation of facts:

"The sum of $33.09 claimed by plaintiff for the transportation services furnished each of the above mentioned soldiers represents the deduction from the commercial fare of

1,761.43 $63.16, or 50 per cent. of ________ of said 1,914.57

fare, or 46.001 per cent. of said fare, less a further undisputed deduction of 3 per cent. The sum of $32.29, paid by defendant in each instance, represents the deduction of 47.285 per cent. from said fare of $63.16, and the deduction of 3 per cent. above mentioned, and is computed by taking the proportion of aided mileage to total mileage from St. Paul to Seattle, via plaintiff's lines of railroad through Brainerd, Minn., and Meeker, Wash., such total distance being 1,962.21 miles, of which 1,855.67 miles were constructed by aid of grants of public lands as hereinbefore set forth. If plaintiff is entitled to recover, the amount due is $1.60."

The situation with respect to transportation, due to the cut-offs between Little Falls and Staples, and between Palmer Junction and East Albany, is thus stated in paragraph 9 of the stipulation:

"During all of the times herein mentioned plaintiff has maintained all of its land grant lines of railroad including those contained in its alternate routes between St. Paul and Seattle via Brainerd, Minn., and Meeker, Wash., in suitable condition for its use and for use as post and military routes, and has furnished passenger train service thereover and over its entire system which has been and is suitable and adequate for serving the public. The passenger train service maintained by plaintiff via Brainerd and Meeker was not and is not designed for the accommodation of continuous through travel from St. Paul to Seattle, and was and is an inferior class of service for such...