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1

RAILROAD

IS

IT IN LATER ACCOUNT.

+106

(40 Sup.Ct.) 602, 61 L. Ed. 1216; New York & Queen's

(252 U. S. 112) Gas Co. v. McCall (245 U. S. 345, 350, 38 Sup. GRAND TRUNK WESTERN RY. CO. v. Ct. 122, 62 L. Ed. 337. But there is no war

UNITED STATES. rant

in law for the contention that merely | (Argued Jan. 21 and 22, 1920. Decided March because its business fails to earn full 6 per

1, 1920.) cent. upon the value of the property used, the company can escape either obligations

No. 153. voluntarily assumed or burdens imposed in the ordinary exercise of the police power. 1. Post OFFICE Ow21(4) OVERPAYMENT OF

LAND-AIDED

UNAUTHORIZED Compare Missouri Pacific Railway Co. v. Kansas, 216 U. S. 262, 279, 30 Sup. Ct. 330,

AND SHOULD BE RECOVERED. 54 L. Ed. 472; Chicago, Rock Island & Pacific

If a railroad was land-aided, payment of Railway v. Arkansas, 219 U. S. 453, 31 Sup. carriage of mails otherwise provided by law

more than 80 per cent, of the full rates for the Ct. 275, 55 L. Ed. 290;: Missouri Pacific Rail

was unauthorized, and it was the duty of the way v. Omaha, 235 U. S. 121, 35 Sup. Ct. 82, Postmaster General to seek recovery of the over59 L. Ed. 157.

payment under Rev. St. $ 4057 (Comp. St. 8 [8] Fourth. The company also insists that 7606), relative to recovery of moneys wrongthe ordinance is void because it denies equal fully paid out of the funds of the post office protection of the laws. The contention rests

department. upon the fact that since entry of the judg. 2. Post OFFICE 21(4)-OVERPAYMENT FOR ment below the Supreme Court of the state CARRYING MAILS MAY BE RECOVERED BY DEBhas decided Superior v. Duluth Street Railway Co., 166 Wis. 487, 165 N. W. 1081, which Balances due railroads for carrying the the company alleges is not reconcilable with mails although arising under successive quad

rennial contracts are regarded as running ac*its decision in this case. The similarity of counts, and overpayments may be recovered by the ordinances and conditions in the two means of a later debit in the accounts, no matcases does not seem to us as clear as is the error is discovered and the recovery at

ter how long a time may have elapsed before asserted. But, however that may be, the

tempted. Fourteenth Amendment does not, in guar

Does anteeing equal protection of the laws, assure 3. LIMITATION OF ACTIONS Eww11(1) uniformity of judicial decisions (Backus v.

NOT ORDINARILY BUN AGAINST THE UNITED

STATES. Fort Street Union Depot Co., 169 U. S. 557, 569, 18 Sup. Ct. 445, 42 L. Ed. 853), any more narily run against the United States.

The statute of limitations does not ordithan in guaranteeing due process it assures immunity from judicial error (Central Land 4. Post OFFICE 21(4)-RULE AS TO CHANGE Co. v. Laidley, 159 U. S. 103, 16 Sup. Ct. 80, 40

OF DEPARTMENTAL CONSTRUCTION NOT APL. Ed. 91; Tracy v. Ginsberg, 205 U. S. 170,

OVERPAYMENT OF RAILROAD

DUE TO MISTAKE OF FACT. 27 Sup. Ct. 461, 51 L, Ed. 755). Unlike Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520,

The rule that when a department charged and Muhlker v. New York, 197 U. S. 544, 25 with the execution of a statute gives it a conSup. Ct. 522, 49 L Ed 872, where protection formly for a series of years the courts will look

struction and acts upon that construction uniwas afforded to rights acquired on the faith with disfavor upon a change whereby parties of decisions later overruled, the company who have contracted with the government upon seeks here to base rights on a later decision the faith of that construction would be injured between strangers which, it alleges, is irrec- did not apply to overpayments to a railroad for oncilable on a matter of law with a decision carrying the mails, due to a mistake of fact as theretofore rendered against it. The conten- to whether it was a land-aided railroad. tion is clearly unsound.

5. PosT OFFICE 21(4)-DUTY OF LAND-AIDAs we conclude that there was a contrac

ED RAILROADS AS TO CARRYING MAILS AFtual duty to repave arising from the accept- FECTS EVERY CARRIER THOUGH RECEIVING ance of the franchise, we have no occasion NONE OF THE LAND. to consider whether there was, as contended, The obligation of a land-aided railroad to also a statutory duty to do so arising under carry the mails at 80 per cent. of the rates section 1862, Wisconsin Statutes, which pro- otherwise payable attaches to the road like an vides that street railways shall "be subject easement or charge, and affects every carrier to such reasonable rules and regulations ture of its tenure, though it received none of the

thereafter using the railroad, whatever the naas the proper municipal authorities land and obtained no benefit from the grant. may by ordinance, from time to time prescribe."

6. PosT OFFICE 21(4)-WHETHER RAILROAD Affirmed.

BECEIVING LAND GRANT WAS IN FACT AIDED
THEREBY IN CONSTRUCTING ROAD WAS IMMA-

TERIAL.
Mr. Justice PITNEY and Mr. Justice Mc-

Where a railroad company applied for land REYNOLDS dissent.

to aid in the construction of its road to the

PLICABLE

TO

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*116

state to which land had been granted by Con- Appeal from the Court of Claims. gress for that purpose, and accepted a patent

Claim by the Grand Trunk Western Railveyance, and expressly assented to the terms way Company against the United States. and conditions of the grant imposed by act of The petition was dismissed (53 Ct. CI. 473), Congress, and disposed of the land while it and the claimant appeals. Affirmed. remained the owner of the railroad, it was im- Messrs. Thomas D. Halpin, of Lapeer, material, with respect to its obligation to car. Mich., Harrison Geer, of Detroit, Mich., and ry the mails at the price fixed by Congress, whether or not it was in fact aided by the land L. T. Michener, of Washington, D. C., for grant in constructing its road.

appellant.

Mr. Assistant Attorney General Spellacy, 7. PUBLIC LANDS C 68-RAILROAD COMPANY for the United States.

HELD AUTHORIZED TO ASSENT TO CONDITIONS
OF GRANT IN AID OF CONSTRUCTION.

*Mr. Justice BRANDEIS delivered the A railroad company, authorized by its charter to receive a land grant, was necessarily au

opinion of the Court. thorized to assent to the conditions upon which

The railroad from Port Huron to Flint, in alone the grant could be made under the act Michigan, sixty miles in length, was completof Congress granting the land to the state for ed on December 12, 1871. It was built by that purpose.

the Port Huron & Lake Michigan Railroad

Company. By foreclosure of a mortgage exe8. Post OFFICE Em 21(4)-COMPANY CLAIMING

#117 UNDER RAILROAD MORTGAGE NOT IN POSI. cuted *by that corporation and several consolTION TO QUESTION OBLIGATION IMPOSED BY idations it became on October 31, 1900, the LAND GRANT.

property of the Grand Trunk Western RailThough a mortgage on the property of a way Company and has since been a part of railroad was executed before the company ap- its system. For forty-one years after the plied for a grant of lands in aid of its construc- completion of this sixty-mile road the mails tion, and did not purport specifically to cover

were carried over it by the successive owners public lands, one claiming under the mortgage under the usual postal contracts and pay. was in no better position than the railroad company to question the obligation of the railroad ment was made for the service quarterly at to carry the mails at the price fixed by Con- full rates. In 1912 the Postmaster General, gress, where the trustee under the mortgage concluding that this was a land-aided railclaimed the lands as after-acquired property, road within the provisions of section 13 of and the company's interest therein was by the Act of July 12, 1876, c. 179, 19 Stat. 78, special proceeding made subject to the fore- 82 (Comp. St. § 7485),1 restated the account closure proceedings.

for the twelve full years during which the

road had been operated by the Grand Trunk 9. PUBLIC LANDS Omw 85 REQUIREMENT OF Western. Twenty per cent. of the mail pay LAND GRANT AS TO TIME OF CONSTRUCTION for that period was found to be $50,359.70; CONDITION SUBSEQUENT AND

and this amount he deducted from sums acQUISHMENT OF REVERSIONARY INTEREST RE

cruing to the company under the current mail MOVED RIGHT TO OBJECT.

contract. He also reduced by twenty per The requirement of Act June 3, 1856, grant-cent. the amount otherwise payable under ing land to the state of Michigan to aid in the the current contract for carrying the mail construction of railroads, that the railroads over this part of its system. Thus he deshould be completed within 10 years was a conducted altogether $52,566.87 from the amount dition subsequently annexed to an estate in fee, and the title remained valid until the fed- payable on June 30, 1913. The road had in eral government took action by legislative or fact been built without any aid through grant judicial proceedings to enforce a forfeiture; of public lands. None had passed to the and a relinquishment by Congress of its rever- Grand Trunk Western when it acquired the sionary interest in the land removed all possi- road; and, so far as appears, that company bility of objection to the validity of the state's had no actual knowledge that any of its patent because of the failure to complete the predecessors in title had acquired any public line within the prescribed time.

land because of its construction. The com10. POST OFFICE W21(4)-RAILROAD CHARGED pany insisted that the $52,566.87 thus deduct

ed from its mail pay was withheld without STATE PATENT TO LAND WAS IN

warrant in law, and brought this suit in the

Court of Claims to recover the amount. 53 Where Congress granted land to the state Ct. Cl. 473. Its petition was dismissed and of Michigan to aid in construction of certain lines of railroad, and the state granted about

1 “Sec. 13. That railroad companies whose railroad 36,000 acres to a particular railroad, but the

was constructed in whole or in part by a land patent was held invalid as to about 30,000 acres,

grant made by Congress on the condition that the

mails should be transported over their road at such the railroad was nevertheless subject to the ob- price as Congress should by law direct shall religation imposed by the grant of carrying the ceive only eighty per centum of the compensation mails at such price as Congress might direct. ' authorized by this act.”

fm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

WAS

RELIN

AS TO CARRYING

MAILS

WITH OBLIGATION
THOUGH
VALID.

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(40 Sup.Ct.) the case comes here on appeal. Whether, which recited the former proceedings and the the company is entitled to relief depends up- completion of "sixty miles of the unfinished on the legal effect of the following facts. portion of said line" the board directed the

transfer of all the land to it. The resolution *By Act of June 3, 1856, c. 44, 11 Stat. 21, of the board was followed on May 30, 1873, Congress granted to Michigan public land to by a patent for all the land from the Governaid in the construction of certain lines of

or of the state, its formal acceptance by the railroad a part extending easterly of Flint to company subject to the provisions of the Act Port Huron—another part, westerly of Flint of Congress of June 3, 1856, and action by it to Grand Haven. The act contained in Sec- to take possession of the land and to dispose tion 5 the usual mail provision.2 In 1857 of it for the benefit of the company. In 1877 the Legislature of Michigan granted these the Supreme Court of Michigan held in Bowes lands to two companies on condition that v. Haywood, 35 Mich. 241, that the patent so they accept the obligations of the grant with far as it purported to transfer the 30,988.76 in sixty days. Each company filed within

acres west of Flint was void under the Michthe specified time a partial acceptance, re-igan legislation, because there had not, in fusing to accede to the taxation features of fact, been any claim or pretense that the comthe grant. Thereupon the rights of each to

pany ever contemplated building the line any part of the public lands was declared west of Flint; and in Fenn v. Kinsey, 45 forfeited by the state authorities for failure Mich. 446, 8 N. W. 64 (1881), that court held to comply with the state legislation. Subse

that an act of the Michigan Legislature passquently the companies filed maps of definite ed May 14, 1977 (Laws 1877, No. 1:2), which location in the General Land Office of the purported to ratify the patent, was inoperaInterior Department, which were approved tive so far as it concerned the lands west of by that office; and on June 3, 1863, the Sec- Flint because it impaired rights reserved to retary of the Interior certified to the Govern the United States by the Act of June 3, 1856. or of Michigan 30,998.76 acres of land lying Meanwhile, Congress had relinquished to west of Flint for the company which was to Michigan, by joint resolution of March 3, build the line from Grand Haven to Flint, 1879, No. 15, 20 Stat. 490, its reversionary the Detroit and Milwaukee Railway Company. On November 1, 1864, he certified 6,- *interest in the lands ;3 and thereafter the 428.68 acres, all but 9740/100 acres of which Legislature of Michigan (Act of June 9, 1881, lay east of Flint, for the company which was Laws Mich. 1881, p. 362), ratified as to the to build the line from Flint to Port Huron, the Port Huron & Milwaukee Railway Com- six thousand acres east of Flint, the action pany. Neither company constructed its line theretofore taken by the state authorities, denor received any patent for land. The rights claring also that “all deeds and conveyances of way and other property of the Port Huron heretofore executed by the Port Huron & & Milwaukee Railway Company passed Lake Michigan Railroad Company” “shall be through a foreclosure sale to the Port Huron deemed to be of full force and effect” and & Lake Michigan Railroad Company; and that “the rest and residue of said lands is this corporation built the road in question vested in said company, its successors or as

signs." Whether there remained then any during the years 1869, 1870 and 1871. *But it land which had not been disposed of by that made no application for any part of these company or one of its successors does not aplands until three weeks before the comple- pear; but it does not appear that when in tion of the road. Then, on November 18, 1875 proceedings were taken to foreclose the 1871, it petitioned the State Board of Con- mortgage under which the appellant claims trol, which was charged with the disposition title to the road, the trustee to whom the of the public lands, to confer upon it both lands had been transferred for the company's the 30,998.76 acres west of Flint and the 6,- benefit was joined for the purpose of includ428.68 acres east of Flint which the Secre- ing all such interest in the property to be tary of the Interior had certified; and in so sold. applying it asked for the land "for the pur- The Act of June 3, 1856, had contemplated pose of aiding in the construction" of its con- a grant of six sections (3,810 acres) per mile templated railroad which was described as of road to be constructed. That would have extending from Grand Haven to Flint and been 230,400 acres for the sixty miles. The thence to Port Huron. The board approved of making the grant "for the purpose of aid- 3 Resolution of March 3, 1879, “That the United ing in the construction of the road"; but no States hereby releases to the state of Michigan any further action was taken until May 1, 1873, the United States in such of the lands granted to,

and all reversionary interest which may remain in when upon a new petition of the company and acquired by the said state of Michigan by act

of Congress of June third, eighteen hundred and 1 "Sec. 5. And be it further enacted, that the Unit- | fifty-six, and certified to the said state in accorded States mail shall be transported over said roads, ance with said act, as were granted to aid the conunder the direction of the Post Office Department, struction ct the road from Grand Haven to Flint, at such price as Congress may, by law, direct: and then to Port Huron. This release shall not in Provided, that until such price is fixed by law, the any manner affect any legal or equitable rights in Postmaster General shall have the power to de- said lands, which have been acquired, but all such termine the same."

rights shall be and remain unimpaired."

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ure.

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company which built them and those claim- | the railroad, whatever the nature of the tening under it received at most 6,428 acres. Chicago, Saint Paul, etc., Railway v. The case is one of apparent hardship. Was United States, 217 U. S. 180, 30 Sup. Ct. 470, the judgment of the Court of Claims denying 54 L Ed. 721. The appellant expressly disrelief required by the applicable rules of claims any contention that the mail clause law?

should not apply because the quantity of land [1-4] First. If the railroad was land-aided, covered by the grant was small as compared payment of more than eighty per cent. of the with that contemplated by the Act of June 3, full rates otherwise provided by law was un- 1856, and with the cost of the road. authorized; and it was the duty of the Post- [6-8] Third. It is contended that this railmaster General to seek to recover the over- road was not land-aided, because it had, in

fact, been completed without the aid either of payment. Revised *Statutes, $ 4057 (Comp. funds or of credit derived from these public St. § 7606). He was under no obligation to

lands. Whether the Port Huron & Lake establish the illegality by suit. Having satis- Michigan Company which built the railroad fied himself of the fact he was at liberty to was in fact aided by the land grant in so dodeduct the amount of the overpayment ing is immaterial. Before the road had been from the moneys otherwise payable to the fully completed it asked that the land be company to which the overpayment had been granted to it in aid of the construction, and made. Wisconsin Central Railroad Co. v. for this purpose only could the grant be made United States, 164 U. S. 190, 17 Sup. Ct. 45, under the act of Congress. It accepted from 41 L. Ed. 399. There was no attempt to in the state a patent for the land which recited clude in the deduction any alleged overpay that such was the purpose of the conveyance; ment to any of appellant's predecessors in and it expressly assented to the terms and title. Balances due for carrying the mails, conditions of the grant imposed by the Act although arising under successive quadren of June 3, 1856. Thereafter it proceeded to nial contracts, are regarded as running ac- dispose of the land. Throughout this period counts, and moneys paid in violation of law the Port Huron & Lake Michigan Company upon balances certified by the accounting offi- remained the owner of the railroad. It had cers may be recovered by means of a later been authorized by its charter to receive the debit in these accounts. It matters not how land grant and necessarily to assent to the long a time elapsed before the error in mak- conditions upon which alone the grant could ing the overpayment was discovered or how be made to it. It is true that the mortgage long the attempt to recover it was deferred.

upon its property, under which appellant The statute of limitations does not ordinarily claims title, was executed before the comrun against the United States and would not pany had applied for the grant; and it does present a bar to a suit for the amount. See not appear that the mortgage purported spe United States v. Thompson, 98 U. S. 486, 25 cifically to cover public lands; but the trusL. Ed. 194. It is true that when a depart- tee under the mortgage claimed these lands ment charged with the execution of a statute as after-acquired property and the company's gives it a construction and acts upon that interest in them was, by special proceeding, construction uniformly for a series of years, the court will look with disfavor upon a change whereby parties who have contracted made subject to the foreclosure proceedings. with the government upon the faith of that The appellant is therefore in no better posiconstruction would be injured. United States tion than the Port Huron & Lake Michigan v. Alabama Great Southern Railroad Co., 142 Company to question the charge upon the U. S. 615, 12 Sup. Ct. 306, 35 L. Ed. 1134. railroad imposed by acceptance of the grant. But here the practice long continued of pay

[9] Fourth. Appellant points to the fact ing the full rate instead of eighty per cent. that the patent to the lands lying west of thereof was not due to any construction of a Fint was later held to be void by the Sustatute which the department later sought preme Court of the State, and insists that to abandon, but to what is alleged to be a thereby the charge or condition concerning mistake of fact-due perhaps to an

the carriage of the mail must be held to have sight. To such a case the rule of long-con-l lands east of Flint never was declared void ;

been relinquished. But the patent to the tinued construction has no application. The appellant must be held to have taken the the company's title to them never was ques. road with notice of the burdens legally im- tioned; and the objection to the patent to

the western lands did not apply to them. posed upon it.

[5] Second. If the road was land-aided, it That objection was that the Port Huron & is immaterial that the company which later Lake Michigan Railway Company was not

a "competent party" to receive the western carried the mail over it received *none of the lands within the meaning of the eleventh secland and obtained no benefit from the grant. tion of the Michigan Act of 1857 (Laws The obligation to carry mails at eighty per 1857, No. 126), because it did not propose cent. of rates otherwise payable attached to to construct a line from Grand Haven the road like an easement or charge; and it to Owosso. Bowes V. Haywood, supra, affects every carrier who may thereafter use '246. And the attempt by the Legislature

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over

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(40 Sup.Ct.) to make it a "competent party" through "Said railroads shall be and forever remain the Act of 1877 violated the obligations of the public highways for the use of the government federal government's grant. Fenn v. Kinsey, of the United States, free from toll or other supra. The only flaw in the title to the lands charge upon the transportation of any property east of Flint lay in the fact that the railway or troops of the United States; and the United

States mail shall be transported over said railhad not been completed within ten years of the Act of June 3, 1856, as required by that roads, *under the direction of the Post Office act. This requirement, however, was a con- Department, at such price as Congress may by dition subsequently annexed to an estate in law direct. * fee, and the title remained valid until the federal government should take action by The order of the Board of Control of May legislation or judicial proceedings to enforce 1, 1873, directing the transfer of the land to a forfeiture of the estate. 'Schulenberg v.

the Port Huron & Lake Michigan Company, Harriman, 21 Wall. 44, 63, 64, 22 L Ed. 551; and the patent issued by the Governor were Railroad Land Co. v. Courtright, 21 Wall. founded upon the authority of section eleven 310, 316, 22 L. Ed. 582. So far from doing of this act; and under date of May 30, 1873, so Congress relinquished by joint resolution the company accepted the lands with the burits eversionary interest in the land, and dens they imposed. The railroad, whose ownthereby removed all possibility of objection ers and constructors accepted aid derived on its part to the validity of the patent; and from these lands, became charged by operathe state of Michigan later ratified the patenttion of law with the burden of transporting by legislation admitted to be valid.

the mails. The question whether that com[10] Fifth. The appellant urges that the il- pany would have accepted the land with its

burdens if it had foreseen the invalidity of

the title to the western lands, is wholly imlegality of the pat*ent to the western lands material. The burden attached upon the acconstituted a failure of consideration which

ceptance of any aid whatsoever no matter voided the contract with the government. The burden of the mail clause, it says, could how disproportionate to the cost of construct

ing the portion so aided. be imposed only by contract between the government and Port Huron & Lake Michi- tween the company and the state authorities.

The transaction called illegal was one began Company. The contract was for land. The United States was no party to it. It had west as well as east of Flint-and the land merely supplied property which the parties west could legally be granted only if the com- to it used. The government never objected to pany contemplated building the road west. the disposition made of it; and evidenced its ward to Grand Haven. As there was not even a pretense that it contemplated such March 3, 1879. No reason exists why rights

approval by passage of the joint resolution of construction, the contract was illegal. The

by way of charge upon the railroad which government's claim under the mail clause

were acquired by the government through must fail, because no rights can be acquired

the accep

ince of six thousand acres of pubunder an illegal contract. So the appellant

lic land, should be invalidated by the alleged contends. Such a view is the result of re- illegality of the state authorities' action in garding the transaction as a promise by the railway to the government to carry the mail issuing a patent to a wholly different tract.

Affirmed. at a price fixed by Congress, on consideration of 36,000 acres of public land. A contract of this sort would create a purely personal obligation attaching “to the company,

(252 U. S. 273) and not to the property"-clearly not to a

STATE OF MINNESOTA V. STATE OF mere licensee. However, it is settled that

WISCONSIN. the obligation in question is not of this nature but does attach to the property, even (Argued Oct. 16 and 17, 1919. Decided when used by a licensee. Chicago, St. Paul,

March 8, 1920.) etc., Ry. v. United States, 217 U. S. 180, 30 Sup. Ct. 470, 54 L. Ed. 721. The obligation

No. 16, Original. of a land-aided railway to carry the mail at 1. STATES Ow12(2)—LOCATION OF MOUTH OF a price fixed by Congress is a charge upon ST. LOUIS RIVER, FIXING BOUNDARY OF WISthe property. The public lands were granted to Michigan to aid the construction of cer- Within the meaning of Act Cong. Aug. 6, tain railways upon certain conditions. The 1846, describing the northern boundary of WisLegislature of Michigan could not dispose of consin as running through the center of Lake the lands except in accordance with the terms Superior to the mouth of the St. Louis river,

the mouth of such river is not southeast of of the grant. By the Act of February 14, Big Island, where the banks, channel, and cur1857, it accepted the grant and enacted legis- rent characteristic of a river end and lake fealation to give legal effect to the conditions of tures begin, but at the deep channel between it. Section 4 of the act is as follows:

Minnesota Point and Wisconsin Point.

CONSIN STATED.

For other cases see same topic and KEY-NUMBER in all Key-Numberej Digests and Indexes

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