(40 Sup.Ct.)

petitioner. Petition for a writ of certiorari to [Petition for a writ of certiorari to the United the Supreme Court of the State of Washington States Circuit Court of Appeals for the Ninth denied. Circuit denied.

(251 U. S. 198)

Stat. 155, c. 59), and by the Act of July 28, ST. LOUIS, I. M. & S. RY. CO. v. UNITED 1866 (14 Stat. 338, c. 300).

STATES.

The fourth section of the Act of February

(Argued Nov. 12, 1919. Decided, Jan. 5, 1920.) 9, 1853, provides:

2. PUBLIC LANDS 85-EMPTY MAIL BAGS GOVERNMENT PROPERTY TO BE TRANSPORTED FREE UNDER LAND GRANT TO RAILROAD.

"The said railroad and branches shall be and remain a public highway for the use of the Government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States."

The first section of the Act of July 28, 1866, with respect to said railway provides: "All property and troops of the United States road and branches at the cost, charge, and exshall at all times be transported over said railpense of the company or corporation owning or operating said road and branches respectively, when so required by the Government of the United States."

⭑203

February 4, 1910, the Post Office DepartEmpty mail bags, when withdrawn by the ment transmitted to the claimant company a government from the mails pursuant to Act May 27, 1908, to be returned by freight for distance circular which *relates to mail transfuture use, were within Act Feb. 9, 1853, § 4, portation, the same was duly filled out and and Act July 28, 1866, § 1, providing that trans-certified and returned to the Post Office Deportation of property of the United States over partment. Between the 17th of February and a railroad construction of which was aided by the 1st day of June, 1910, the Post Office Deland grant shall be without charge. partment made the quadrennial weighing of 3. PUBLIC LANDS 85-EMPTY MAIL BAGS mail in the weighing division which included the railway company's lines. Before this weighing of the mails, Congress passed the Act of May 27, 1908, 35 Stat. 412, c. 206, making appropriations for the Post Office Department, which provides:

NOT WITHIN ARMY TRANSPORTATION ACT.

Act June 30, 1882, as to rates of army transportation, has no application to transportation by freight of empty mail bags withdrawn from the mails for return for future use. Mr. Justice McReynolds, dissenting.

"The Postmaster General shall require, when in freightable lots and whenever practicable, the withdrawal from the mails of all postal cards,

Appeal from the Court of Claims. Suit by the St. Louis, Iron Mountain & stamped envelopes, newspaper wrappers, empty mail bags, furniture, equipment, and other supSouthern Railway Company against the Unit-plies for the postal service except postage ed States. Petition was dismissed (53 Ct. stamps, in the respective weighing divisions of Cl. 45), and claimant appeals. Affirmed.

the country, immediately preceding the weighing

Mr. Benjamin Carter, of Washington, D. C., period in said divisions, and thereafter such for appellant.

Mr. Assistant Attorney General Frierson, for the United States.

*202

*Mr. Justice DAY delivered the opinion of the Court.

postal cards, stamped envelopes, newspaper wrappers, empty mail bags, furniture, equipment and other supplies for the postal service, except postage stamps, shall be transmitted by either freight or express."

Subsequent to the passage of the Act of May 27, 1908, the Post Office Appropriation Acts provided for specific sums for the payment of expressage on postal cards, stamped envelopes, newspaper wrappers and empty mail bags, and they carried similar provisions as to the withdrawal of said articles from the mails preceding weighing periods.

This case presents questions arising upon a suit brought by the railway company in the Court of Claims to recover compensation for the carriage of mail bags under facts found in the Court of Claims in the record sent up for our consideration. These facts are: That the St. Louis, Iron Mountain Before the weighing of the mails of the & Southern Railway Company, a corporation railway company the Postmaster General, organized under the laws of the State of Mis-acting under authority of the provisions of souri, operated a line of railway between the Act of 1908, withdrew from the mail the Tower Grove, Missouri, and Texarkana, in empty mail bags, and the same were thereArkansas. So much of the railway line as after transported by freight over claimant's lies between Poplar Bluff, Missouri, and Tex-line of railway, and the weights were not inarkana, Arkansas, was aided in its construc- cluded in estimating the weight of the mail tion by a grant of land from the United carried during the contract term beginning States by the Act of February 9, 1853 (10 July 1, 1910.

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

(40 Sup.Ct.) The findings give the number of pounds of ⚫204 empty mail *bags withdrawn from the mails during the weighing season of 1910 and sent by freight to St. Louis from Texarkana, Arkansas, and Little Rock, Arkansas, and show that if these empty bags had not been so withdrawn and the weight thereof had been included with the weight of the mails, upon which compensation was based, the claimant would have received $15,296.82 more than it did receive for service performed between July 1, 1910, and February 1, 1912.

Two questions are presented, which are thus stated in the opinion of the Court of Claims:

"(1) Could the empty mail bags be lawfully withdrawn from the mails merely for the purpose of reducing claimant's compensation for mail transportation service?

"(2) And assuming that said empty mail bags were lawfully withdrawn from the mails and United States within the purview of the land shipped by freight, were they 'property' of the grant acts of 1853 and 1866?"

During the period from July 1, 1910, to [1] As to the first question there can be and including January 31, 1912, a total of little difficulty. There was nothing in any 1,452,271 pounds of empty mail bags were transported over the railroad of the claimant law or contract of the Government which rein freight trains from Texarkana, Arkansas, quired it to permit the weighing of empty to St. Louis, Missouri, for which service the sacks or containers as part of the mail in claimant submitted bills at the published tar- determining the compensation to be paid for iff rate against the United States amounting carrying the same. While, generally speakin the aggregate to $14,043.17. In making ing, a bag or container in which letters or settlement of these charges the Auditor for other mailable matter is carried is part of the the Post Office Department made a deduction mail, and collectively the containers might for the entire charge for the services per- be considered as part of the mail essential formed from Texarkana, Arkansas, to Pop-to carry the mailable matter from one place

lar Bluff, Missouri, amounting to $8,251.45. The sixth section of the Act of 1853 pro

vides:

"The United States mail shall at all times be transported on the said road and branches, under the direction of the Post Office Department, at such price as Congress may by law direct."

And the thirteenth section of the Act of July 12, 1876 (19 Stat. 78, c. 179 [Comp. St. 7485]) provides :

"That railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct shall receive only 80 per centum of the compensation authorized by this act."

The findings further state that ever since the passage of said last-mentioned act it has been the custom and practice of the Post Office Department to pay all the railroads

205

*whose construction was aided by grants of land from the United States 80 per centum of the rate of compensation paid to nonlandaided roads for carrying the mails.

to another, nevertheless there was nothing to
prevent Congress, in fixing compensation for
the carriage of the mails to expressly with-
draw therefrom the empty mail bags, and
*206
this it did by the Act of May 27, 1908, above

quoted.

For the purposes of fixing compensation in the weighing of the mail Congress directed that the weight of the empty bags should be withheld in determining the average weight of the mails as the basis of fixing compensation. We agree with the Court of Claims that such action violated no contractual or other right of the claimant.

[2, 3] Concerning the other question presented there is perhaps more difficulty. By the sixth section of the Act of 1853 it was directed that the United States mail should be transported over the claimant's road at such prices as Congress may by law direct, and by the thirteenth section of the Act of July 12, 1876, railroads aided by grants of land made by Congress on condition that Congress should fix the basis of compensation for transportation of mails over its lines Claimant presented its bill for the trans- should receive 80 per centum of the compenportation of said freight at the full commer- sation provided for in the act. These acts cial rate provided by the duly published and make specific reference to the amounts to be approved tariffs. In making settlement there- paid for the transportation of the mails. The for, the Postmaster General made deduction payment provided in them is for the transof the entire charge between Texarkana, Ar-portation of the mails which, it may be conkansas, and Poplar Bluff, Missouri, and re- ceded, might include with the mail matter fused to pay anything therefor, on the ground the bags in which the same was carried. that the railway company was obliged by the However, by the Act of May 27, 1908, the provisions of the Acts of 1853 and 1866 to Congress has classified empty mail bags with transport said empty mail bags without cost furniture and equipment and other supplies or expense to the United States. for the postal service, to be transported by freight or express. Congress thus undertook to make a separate provision covering the carrying of empty mail containers after they

Upon these findings the Court of Claims decided against the claimant, and dismissed its petition. 53 Ct. Cl. 45.

had served their purpose of inclosing the mail matter during transportation.

It is insisted that the return of the empty mail bags is but part of the transportation of the mail. But certainly Congress might provide that empty mail bags should be differently treated than those used in the actual transportation of mailable matter. None will dispute that forwarding mail bags from their

207

Mr. Justice McREYNOLDS, dissenting. Appellant's right to recover seems quite plain to me.

The Act of February 9, 1853, ch. 59, 10 Stat. 155, granted lands afterwards used to aid in constructing appellant's lines. Section 4: The said railroad and branches shall be and remain a public highway for the use of the Government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States."

Section 6:

"That the United States mail shall at all times be transported on the said road and branches, under the direction of the Post Office Department, at such price as Congress may by law direct."

ed the Act of 1853. Section 1:

And provided further, that all property and troops of the United States shall at all times be transported over said railroad and branches at the cost, charge, and expense of the company or corporation owning or operating said road and branches respectively, when so required by the Government of the United States."

place of manufacture to *different points in the country for use would not constitute transportation of mail. We see no reason why Congress may not regard empty mail bags, being returned for further use, as no longer a part of the mails. Congress authorized contracts for the transportation of the mail, but by the Act of May 27, 1908, it withdrew empty mail bags from mail transportation and directed that they be sent by freight or express. How then was such transporta- The Act of July 28, 1866, ch. 300, 14 Stat. tion to be compensated? Ordinarily the ap-338, among other things, revived and extendplicable freight or express rates would control. But the acts of Congress which provided that property of the United States should be transported at the expense of the company were in full force and effect. It is said that in the report and action upon the legislation which took empty mail bags from carriage as part of the mails and directed the carriage by freight or express there is no intimation that the result of such legislation would have the effect of obtaining free transportation under the land grant acts, and that no such requirement is made in the act itself. But, Congress must be presumed to have known of its former legislation in the Acts of 1853 and 1866, and to have passed the new laws in view of the provisions of the legislation already enacted. These statutes must be construed together and effect given to all of them. Under the earlier acts this railroad in consideration of benefits received, was bound, when required, to transport troops and property of the United States free of charge.

We have here a question concerning the transportation of property of the United States. See Southern Pacific Co. v. United States, 237 U. S. 202, 204, 35 Sup. Ct. 573, 59 L. Ed. 916. The act of Congress providing for 50 per cent. rates concerns only "army" transportation and is not applicable to this case. See Act June 30, 1882, c. 254, 22 Stat. 120, 1 Supp. Rev. Stats. 375, 376. The empty mail bags were property, and belonged to the United States. When the Government required their transportation by freight, the

*208

former legislation which accom*panied the grant of lands to this railway company controlled the terms of carriage.

We find no error in the judgment of the Court of Claims, which was also the conclusion of the Comptroller of the Treasury, 17 Comp. Dec. 749.

Affirmed.

*209

And thus it appears that one section of the statutes directs free transportation of "all property and troops of the United States" and a wholly different section requires transportation of the United States mail "under the direction of the Post Office Department, at such price as Congress may by law direct." Through the Post Office Department, the are engaged in handling the Their transportation is part of a well-defined business. In the orderly course and as an essential part of that business emptied sacks are constantly being returned for further use. They are property of the United States in a certain sense, whether full or empty; and they are elements of the mail whether going out or coming back.

United States
mails for pay.

A clear distinction between property of the United States and United States mail is preserved by the very language of the land grant statutes; and, I think, Congress had no purpose-if, indeed, the power-to convert mail into property within the meaning of these statutes simply by directing carriage of the former in freight trains. The purpose was to secure transportation at less than former cost, and to such end Congress, in effect, commanded that emptied bags, a portion of the mails for which rapid movement is not essential, "shall be transmitted by either freight or express" and compensation made according to the ordinary rates. Under this interpretation, the railroad would suffer no oppressive burden and contemplated economies would be effectuated.

(251 U. S. 192)

(40 Sup.Ct.)

was passed. That a city has no power to CITY OF WINCHESTER et al. v. WIN-regulate rates of this character unless it CHESTER WATERWORKS CO.

(Argued Oct. 24, 1919. Decided Jan. 5, 1920.)

No. 51.

has legislative authority so to do is established, and does not seem to be disputed by the appellant. "Independently of a right to

WATERS AND WATER COURSES 203(6)-CITY regulate and control the rates to be charged

NOT GRANTED NECESSARY AUTHORITY TO REG-
ULATE RATES OF WATER COMPANY.

*194

for public service reserved in a grant of a franchise or right to use the city streets, a Legislative authority necessary for a city, city or other municipality has no power to independently of reservation of right in fran- regulate the rates to be charged by water, chise for use of streets, to regulate rates of a water company, held not granted by Ky. St. § lighting or *other public service corporations 3490, subsec. 25, providing that a city of the in the absence of express or plain legislative fourth class may grant right of way over streets authority to do so." 3 Dillon on Municipal to a street railway company, on conditions Corporations (5th Ed.) § 1325. Nor does deemed proper, and may regulate the fares on such authority arise from the power to regstreet cars, and under like condition may grantulate the opening and use of streets, nor a right of way for water companies, nor by sub-grant of the general right to control and regulate the right to erect works and lay pipes in the streets of the city. State v. Missouri & K. Telephone Co., 189 Mo. 83, 88 S. W. 41; Jacksonville v. Southern Bell & Tel. Co., 57 Fla. 374, 49 South. 509; Lewisville Natural Gas Co. v. State, 135 Ind. 49, 34 N. E. 702, 21 L. R. A. 734; Mills v. Chicago (C. C.) 127 Fed. 731; State v. She

sections 8, 30.

Appeal from the District Court of the United States for the Eastern District of Kentucky.

Suit by the Winchester Waterworks Company against the City of Winchester and others. From an adverse decree, defendants appeal. Affirmed.

Messrs. J. Smith Hays, of Winchester, Ky., boygan, 111 Wis. 23, 86 N. W. 657.

and T. L. Edelen, of Frankfort, Ky., for appellants.

*193

Bearing this general principle in mind, we come to examine the sections of the laws of Kentucky which, it is insisted, give the au

*Mr. Beverly R. Jouett, of Winchester, Ky., thority to fix water rates. The appellant infor appellee.

sists that this power is expressly conferred in subsection 25 of section 3490 of the Ken

Mr. Justice DAY delivered the opinion of tucky Statutes, which reads as follows: the Court.

the city to any railroad company or street railroad company, on such conditions as to them may seem proper, and shall have a supervising control over the use of same, and regulate the speed of cars and signals and fare on street cars; and under like condition and supervision

may grant the right of way that may be necessary to gas companies, water companies, electric light companies, telephone companies, or any like companies; and may compel any railroad company to erect and maintain gates at any or all street crossings, and to prevent railways from blocking or obstructing the streets or public ways of the city, and to fix penalties for the violation of these provisions: Provided," etc.

"The board of council may grant the right of The Winchester Waterworks Company fil-way over the public streets or public grounds of ed its bill in the United States District Court for the Eastern District of Kentucky, seeking to enjoin the enforcement of an ordinance establishing maximum rates for water to be furnished the city for public use and to the people thereof for private use. By the bill and amended bill it was charged that the city had no authority to pass or enforce an ordinance fixing such rates, because (1) no power had been granted to the city so to do by the Legislature of Kentucky; (2) because the rates established were so low as to be confiscatory in their character, and, consequently, the ordinance was violative of rights secured to the company by the Fourteenth Amendment to the federal Constitution. An answer was filed, and the court decided the case and made a final decree in favor of the company upon the ground that under the laws of Kentucky the city had no authority to pass or enforce an ordinance fixing rates. The court found it unnecessary to pass upon the question of the confiscatory character of the rates. The bill invoked jurisdiction upon a constitutional ground, and the case was brought here by direct appeal.

It appears that the company had a contract with the city, which expired in 1916, and thereafter the ordinance in controversy

Other subsections claimed to be applicable are given in the margin.1

1 Kentucky Statutes:

"3490. The board of council, in addition to other powers herein granted, shall have power within the ctiy:

chase, or lease waterworks and maintain same, or "(8) To provide the city with water, or erect, purto make all necessary contracts with any person

or corporation for such purposes; to erect hydrants,

cisterns, fire plugs and pumps in the streets within or beyond the limit of the city...

"(30) The board of council shall have power, by ordinance, to prescribe the punishment, by fine not exceeding $100, or imprisonment not exceeding 60 interfere with any system of waterworks laid in days of any person who shall molest, damage or said city, or the pipes and mains, hydrants, or any

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