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against this view of the subject, tends to confirm it. Intending to ratify, to make good, and add to the force of the title of that company, which it had derived from its agreements with the Atchison, Topeka and Santa Fe Railroad Company, it did not leave it even in the power of the State of Kansas to confer these lands upon any other company than this one, and thereby prevented all conflict of claims under these several grants. This view of the subject was taken by Mr. Browning, Secretary of the Interior, in a letter addressed to the Commissioner of the General Land Office, March 25, 1867, directing the withdrawal of the lands along the line of the road from public sale or preemption for the benefit of the Union Pacific Railroad Company, Southern Branch, and it has been acted upon by the Land Department and by the various Secretaries of the Interior from that day to this as the true construction of the statutes."
The Supreme Court further comments upon the fact that the railroad company made its application for indemnity lands under the provisions of the act of 1866, as well as under its assignment of the rights granted under the acts of 1863 and 1864, saying (at p. 692):
"And it is true that the Secretary of the Interior, while acknowledging the claim to have been made under all the acts, certified the lands to the State of Kansas in accordance with the terms of the acts of 1863 and 1864, instead of issuing patents directly to the railroad company, as was provided for in the act of 1866. But since that company had all the rights conferred by all three of these statutes, and by the ratification by the State of Kansas of the transfer from the Atchison, Topeka and Santa Fe Railroad Company, and since that State, after these lands were certified to it for the benefit of this company, issued to it patents of the State for those lands, it is obvious that the company thus acquired the real ownership and the equitable interest in the lands which it had earned by building the road, in accordance with the provisions of all the statutes and all the contracts made upon the subject. * * * So far then as this objection goes, that one of these acts of Congress nullifies the others, we think it to be untenable."
The above holding has been approved in the subsequent cases of Wood v. Beach (156 U. S., 549) and Wis. Cent. R. R. Co. v. Forsythe (159 U. S., 58), the former case involving the title to some of the lands granted under the foregoing
This brings me to a consideration of the language used in the different statutes.
The act of 1866 having been designed to consolidate and supplement the acts of 1863 and 1864, and representing the latest will of Congress upon the subject, its provisions would be controlling. (See K. C. R. R. Co. v. Attorney-General, supra, p. 695.) It provides:
"That the grant of lands hereby made is upon condition that said company, after the construction of its road, shall keep it in repair and use, and shall 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 there for to the Government, when required to do so by any Department thereof."
It would seem that the language above quoted is so explicit as not to admit of construction, but claimant contends that the meaning of the words in that act is the same as in the act of 1863, where the provision reads:
"And the said railroad shall be and remain a public highway, 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."
The wording of the act of 1863, as above quoted, is practically the same as that of the earlier acts making land grants to railroads, while that of the act of 1866 follows the later acts, in requiring the road itself "to transport free."
* * *
The claimant, in contending that Congress did not by this change of verbiage intend to impose upon the claimant or upon the roads receiving the later grants more onerous burdens than are imposed by the earlier grants, goes quite fully into the history of the acts under consideration in their passage through Congress, as tending to show that Congress intended in the act of 1866 (although claimant denies its binding force as to this road) simply to confirm the prior grant without increasing its burdens.
I can not, however, agree with this contention. It must be remembered that in 1865 there was in Congress quite an extended discussion of land-grant matters, and in the following year, when land-grant acts were passed, the almost uniform condition imposed was that the several roads "should at all times transport," etc. That by this change of wording Congress intended to make a more specific provision than by the earlier
acts becomes more apparent when we examine an act passed the next day after that now under consideration, namely, the Atlantic and Pacific act of July 27, 1866 (14 Stat., 292), where Congress provided specifically that compensation should be made to the road for Government transportation, this tending to show that in passing the act of July 26, 1866, the words used by Congress to express the conditions of the grant were not inadvisedly chosen.
That Congress believed it had by the act of 1866 provided for free transportation of Government property, while as to the earlier acts there was doubt, would seem to be clearly indicated by the wording of the act of June 16, 1874 (18 Stat., 74), which referred especially to the earlier acts, as follows:
"That no part of the money appropriated by this act shall be paid to any railroad company for the transportation of any property or troops of the United States over any railroad which, in whole or in part, was constructed by aid of a grant of public land on condition that such railroad should be 'a public highway for the use of the Government of the United States free from toll or other charge,' or upon any other conditions for the use of such road, for such transportation."
The case of A., T. & S. F. R. R. Co. v. The United States, (93 U. S., 442) arose under the act of June 16, 1864, supra, and in that case the difference in the wording of the various acts was commented upon, the court saying (p. 453):
"It is not without significance in this connection that in other grants, when Congress intended to provide for transportation being performed by the railroad company, explicit and proper language is used for that purpose, as in the case of the Union Pacific Railroad Company, chartered by Congress July 1, 1862, where it is enacted that the company shall transmit dispatches over its telegraph lines, transport mails, troops, and munitions of war, supplies and public stores, upon its railroad, for the Government, whenever required to do so by any Department thereof, and that the Government shall at all times. have the preference in the use of the same for all the purposes aforesaid, at fair and reasonable rates of compensation, not to exceed the amount paid by private parties for the same kind of service. (12 Stat., 493.) In this case compensation was provided for. In other cases the transportation was to be furnished without charge. After the discussion in 1865, before referred to, Congress made several grants of land, with the express reservation that the Government property should be transported over the roads concerned at the cost, charge, and
expense of the company owning and operating the same, when required by the United States so to do, using language entirely different from that under consideration in the cases now before the court. See acts of 1866 (14 Stat., 95, 237, 241, 290, 338, 549)."
The decision of the Auditor that said railroad between Junction City, Kans., and the northern boundary of the Osage ceded lands is a free land-grant road is therefore approved.
Third. To what business should the readjustment of mileage apply? This point was not decided by the Auditor, but inasmuch as the decision simply authorizes a readjustment of accounts upon the basis of conditions existing prior to any transportation for which claims are now pending, and does not involve the making of new conditions of transportation, I think it should apply to all unsettled accounts of said road wherein the question of mileage under the foregoing decision of the Auditor is involved.
REIMBURSEMENT OF AN OFFICER OF THE MARINE CORPS FOR HIRE OF QUARTERS.
The provision in the act of July 1, 1902, for the hire of quarters for officers of the Marine Corps serving with troops where there are no public quarters belonging to the Government, or where there are not sufficient quarters to accommodate them, only authorizes the furnishing of quarters in kind, and therefore an officer is not entitled to reimbursement for hire of quarters occupied by his family while he was sick in a hospital.
(Assistant Comptroller Mitchell to the quartermaster of the Marine Corps, November 21, 1904.)
I have received through the Secretary of the Navy your reference of a claim of Lieut. Edgar Hayes, U. S. Marine Corps, with a request for a decision as to whether you would be warranted in paying it.
The claim is for reimbursement to Mr. Hayes of $275.20, paid to his wife, Anna L. Hayes, for the hire of two rooms at $12 each per month, from September 1, 1903, to July 14, 1904, during which period Lieutenant Hayes was not in the personal occupancy of the rooms, but was at the United States General Hospital, Fort Bayard, N. Mex., for treatment, by recommendation of the retiring board.
Mr. Hayes states as to the claim:
"I was sick in hospital at Fort Bayard, N. Mex., during all of this time, but maintained an establishment at Annapolis for my wife during the entire period.
"I drew hire for quarters from the quartermaster of the United States Marine Corps from September 10, 1902, to July 31, 1903, inclusive, and authority to hire quarters for me was filed in his office with vouchers for September, 1902. "I inclose herewith copies of orders to Fort Bayard, N. Mex., and also orders detaching me from marine barracks, Naval Academy, Annapolis, Md.
"I inclose also the certificate of the post quartermaster at marine barracks, Naval Academy, Annapolis, Md., to the effect that there were no quarters available for me at that post during the time specified.
"I base my claim for reimbursement for this account on the principle that I am entitled to quarters for my family even though I myself am occupying a berth in a hospital.
"In behalf of this contention it is submitted that I was in the above-mentioned hospital by order from competent authority, and that I was not on sick leave in any sense, and I would not be deprived of my right to quarters, for I was actually attached to marine barracks, Naval Academy, Annapolis, Md., as is shown by the accompanying orders."
At the time he was sent to the United States General Hospital and for some months before he was on duty with troops at Annapolis, Md. No quarters were available for him there, and being on duty with troops he was not entitled to commutation of quarters.
Provision is made for hiring quarters in such cases by the annual appropriation acts. That for the fiscal year 1903 (32 Stat., 688) was as follows:
"Hire of quarters, Marine Corps: For hire of quarters for officers serving with troops where there are no public quarters belonging to the Government, and where there are not sufficient quarters possessed by the United States to accommodate them."
The plain purpose of this appropriation is to provide quarters in kind. It in no sense provides commutation of quarters, and should not be treated as so doing. Any officer properly authorized may hire the quarters, and when so hired they should be paid for.
Your letter of 12th instant, in reply to my request for information, states:
"I have to inform you that quarters for Lieutenant Hayes were not hired by me, but that on September 20, 1902, I