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are not known, but that the company, through its resident attorneys, would present them when the questions involved were taken up for decision.
"On June 9, 1904, said attorneys were informed by this office of the contention of the auditor of the company that it is entitled to half pay for the transportation of troops and munitions of war over the land-grant portion of its Junction City line, extending from Junction City to a point near Humboldt, a distance of 125.77 miles, and were called upon to furnish this office with the authority for such a claim; that is, that that portion of its line is a 50 per cent land-grant road instead of being a free road to the Government.
"On June 14, 1904, said attorneys replied, citing specific provisions in the acts of March 3, 1863, July 1, 1864, and July 26, 1866, and also the land-grant provisions in the annual army appropriation acts, under the heading Transportation of the Army and its supplies.' They stated that from the time the operation of the line was commenced the company submitted to full deduction for the mileage within the bounds of the Osage ceded lands until the matter was recently brought up, and it was held that this portion of the line is not and has not been properly subject to land-grant deduction since the decision of the Supreme Court of the United States at its October, 1875, term, reported in 92 U. S., 733.
"In view of the decision of the Supreme Court of the United States, reported in 92 U. S., 733 and 760, and the statement of the Acting Commissioner of the General Land Office in his letter addressed to the Acting Second Assistant Postmaster-General July 11, 1903, that the Osage ceded lands were excepted from the operation of the grant to the State of Kansas for railroad purposes, and the statement of the Commissioner of Railroads in his letter addressed to the Quartermaster-General of the Army November 6, 1903, that the railroad company has received no lands within the Osage ceded reservation, about 32 miles, nor any indemnity lands for that portion of its line, and that the portion of the line from Parsons to Chetopa is not a land-grant line, I am of the opinion, and so decide, that the Missouri, Kansas and Texas Railway is a land-grant road only for the distance of 125.77 miles, between Junction City, Kans., and the northern boundary line of the Osage ceded lands, near Humboldt, Kans.
"Under the act of March 3, 1863 (12 Stat., 772), the railroads and their branches for which public lands were granted by the act to the State of Kansas were to be and remain public highways, for the use of the Government of the United States, free from all toll or other charge upon the transportation of any property or troops of the United States.
"Under the act of July 1, 1864 (13 Stat., 339), the grant of lands made by said act to the State of Kansas to aid in the
construction of a railroad and telegraph line from Emporia, via Council Grove, to Junction City, was subject to all the provisions, restrictions, limitations and conditions, in regard to selection and location of lands and otherwise, of the act of March 3, 1863, and said railroad was to be a public highway and to transport troops and munitions of war of the United States free of charge.
Under the act of July 26, 1866 (14 Stat., 289), the grant of lands made by said act to the State of Kansas, for the use and benefit of the Union Pacific Railroad Company, Southern Branch, for the purpose of aiding said company to construct and operate a railroad from Fort Riley or near said military reservation (Junction City) down the valley of the Neosho River, to the southern line of the State of Kansas, with a view to the extension of the same through a portion of the Indian Territory to Fort Smith, Ark., was made upon condition that said company, after the construction of its road, should keep it in repair and use, and should at all times transport troops, munitions of war, supplies, and public stores upon its road for the Government of the United States, free from all cost or charge therefor to the Government, when required to do so by any department thereof. The right of way through the public lands was granted by said act to said company, its successors and assigns. The acceptance of the terms, conditions, and impositions of the act of said company was undoubtedly signified in writing, in the manner and within the time provided for in the act, and filed with the Secretary of the Interior.
"The army appropriation act of June 30, 1902 (32 Stat., 507), which made an appropriation for the transportation of the Army and its supplies for the fiscal year covering the aforesaid transportation, provided, on page 517, as follows:
"That in expending the money appropriated by this act a railroad company which has not received aid in bonds of the United States and which obtained a grant of public land to aid in the construction of its railroad on condition that such railroad should be a post route and military road, subject to the use of the United States for postal, military, naval, and other Government services, and also subject to such regulations as Congress may impose restricting the charge for such Government transportation, having claims against the United States for transportation of troops and munitions of war and military supplies and property over such aided railroads, shall be paid out of the moneys appropriated by the foregoing provision only on the basis of such rate for the transportation of such troops and munitions of war and military supplies and property as the Secretary of War shall deem just and reasonable under the foregoing provision, such rate not to exceed fifty per centum of the compensation for such Government trans
portation as shall at that time be charged to and paid by private parties to any such company for like and similar transportation; and the amount so fixed to be paid shall be accepted as in full for all demands for such service.'
"The resident attorneys for the claimant company contend in their letter of June 14, 1904, as follows:
"The further factor of subsequent legislation (that is, legislation subsequent to the acts of March 3, 1863, July 1, 1864, and July 26, 1866) must be noted in connection with the act of July 26, 1866, and it is well known that the only land-grant stipulation now made by Congress is that contained in the army appropriation bill.'
"Referring to said stipulation or provision, the attorneys say: "The above practically presents the exact terms of this provision in each successive army appropriation act.'
They then refer to the free land-grant requirement in the following terms:
"It is not necessary to dwell upon these facts, however, as it is generally well understood that the free land-grant requirement in the case of this and most other free roads is arbitrary, and largely a practice begun on the particular basis and never subsequently changed, as might and probably should have been the case in each instance. It is perfectly obvious that there is no more authority for making the particular line now in question a free road than with any of the 50 per cent landgrant roads in operation, hence our final objection to the manifest unfairness involved.
"So far as known, there are no special grounds upon which the free requirement can be based in this case, and there is certainly sufficient equitable reason why the desired change should now be made.'
"The above provision in the army appropriation act for the fiscal year 1903 and other fiscal years has no pertinency in this connection. The claimant company is not one of the railroad companies described in the provision above quoted and therein provided for, and therefore said provision has no application to the claimant company.
"The grants of land to its aforesaid road were made upon the express condition that it should at all times transport troops, munitions of war, supplies, and public stores upon its road for the Government of the United States, free from all cost or charge therefor to the Government, when required to do so by any department thereof.'
"It is certainly required to do so by a department of the Government when such department makes or issues its formal request for transportation.
"There is no legislation subsequent to that contained in the aforesaid act of July 26, 1866, which affects or modifies the requirement as to free transportation contained in said act,
and therefore there is no justification in fact for the statement that it is well known that the only land-grant stipulation now made by Congress is that contained in the army appropriation
"In view of the fact that both the act of July 1, 1864, and the act of July 26, 1866, require the claimant company at all times to transport troops, munitions of war, supplies, and public stores upon its aforesaid road for the Government of the United States, free from all cost or charge therefor to the Government, when required or requested to do so by any department thereof, and that there is no subsequent legislation affecting or modifying this requirement, I am of the opinion, and so decide, that the Missouri, Kansas and Texas Railway is a free land-grant road for the distance of 125.77 miles between Junction City, Kans., and the northern boundary line of the Osage ceded lands, near Humboldt, Kans."
The railroad herein, through its attorneys, requested and was granted a hearing.
This matter might be disposed of on the question as to whether the road in question is a free or 50 per cent landgrant road, on the practical construction which has been given it by the departments, and which has continuously governed its charges for Government business for the last twentyfive years and over. It has been held to be a free road during all of this time. This holding in order to be overturned now must be clearly wrong. The courts have been open all these years to correct this ruling if wrong; the road has submitted to the ruling all these years, and it is late in the day to ask me to overturn this practical construction of a law in the absence of a decision of a court having jurisdiction, declaring it to be erroneous.
Aside from this view three questions are presented by the Auditor's decision on their merits--First, the distance in Kansas over which said road is to be considered land grant; second, whether that portion is free or 50 per cent land grant; third, to what business the readjustment should apply. I will consider these questions in turn.
First. As to the distance in Kansas over which said road is to be considered land grant, the decision of the Auditor is correct and is therefore approved.
Second. Is the road over the portion now conceded to be land grant a free road or a 50 per cent road?
The railroad contends that all the lands which were actually
received by said road were granted under the acts of March 3 1863 (12 Stat., 772), and July 1, 1864 (13 Stat., 339); that the act of July 26, 1866 (14 Stat., 289), not making any additional benefit to the road could impose no additional burdens; that even if we admit the validity of said act of 1866 as to this company, it does not follow that the road should be free, for the difference between the provisions of the earlier landgrant acts and those of the act of 1866 is but a difference in verbiage, and Congress never intended to cast upon this company any different or greater burdens than those borne by other roads similarly situated.
I do not think the contention of the company that the act of July 26, 1866, supra, should not be considered here can be sustained. The very objections urged in claimant's brief were advanced and strenuously urged in the case of Kansas City, Lawrence and South Kansas Railroad Co. v. The Attorney-General (118 U. S., 682), which was a suit brought in behalf of the United States to quiet the title to certain lands which had been patented to said railroad company under said acts of March 3, 1863, July 1, 1864, and July 26, 1866, but the court there held that the said acts were to be construed in pari materia, and, referring specifically to the act of July 26, 1866, it said:
"Now, it is a strained construction of the act of 1866, in the face of all the probabilities of the case, imputing to Congress, in which that State had two Senators and several members of the House of Representatives, great carelessness, to hold that they intended each one of these separate statutes to stand by itself and the claims to be asserted under them to be distinct grants for different railroads. It is much more reasonable and consonant to all we know of the transaction, and in consideration of the almost certainty that Congress had in view the single purpose of building one road down the Neosho Valley from Fort Riley to the point of intersection with the other road, and that it was aware of the agreement between the Atchison, Topeka and Santa Fe Railroad Company and its grantee in the act of 1866, to hold that it intended by the latter act to ratify and make good the right which the Union Pacific Railroad Company, Southern Branch, already had to the same lands for the purpose of building that road.
"The fact that the act of 1866, while in general terms granting these lands to the State of Kansas, declared that such State should hold them for the benefit of the Union Pacific Railroad Company, Southern Branch, so far from militating