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(252 U. S. 112)

602, 61 L. Ed. 1216; New York & Queen's
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 cent. upon the value of the property used, the company can escape either obligations voluntarily assumed or burdens imposed in

LAND-AIDED

1, 1920.)

No. 153.

RAILROAD IS

OVERPAYMENT OF
UNAUTHORIZED

AND SHOULD BE RECOVERED.

the ordinary exercise of the police power. 1. POST OFFICE 21(4)
Compare Missouri Pacific Railway Co. v.
Kansas, 216 U. S. 262, 279, 30 Sup. Ct. 330,
54 L. Ed. 472; Chicago, Rock Island & Pacific
Railway v. Arkansas, 219 U. S. 453, 31 Sup.
Ct. 275, 55 L. Ed. 290; Missouri Pacific Rail-
way v. Omaha, 235 U. S. 121, 35 Sup. Ct. 82,
59 L. Ed. 157.

[8] Fourth. The company also insists that the ordinance is void because it denies equal protection of the laws. The contention rests upon the fact that since entry of the judgment below the Supreme Court of the state has decided Superior v. Duluth Street Railway Co., 166 Wis. 487, 165 N. W. 1081, which the company alleges is not reconcilable with *106

*its decision in this case. The similarity of the ordinances and conditions in the two cases does not seem to us as clear as is asserted. But, however that may be, the Fourteenth Amendment does not, in guaranteeing equal protection of the laws, assure uniformity of judicial decisions (Backus v. Fort Street Union Depot Co., 169 U. S. 557, 569, 18 Sup. Ct. 445, 42 L. Ed. 853), any more than in guaranteeing due process it assures immunity from judicial error (Central Land Co. v. Laidley, 159 U. S. 103, 16 Sup. Ct. 80, 40 L. Ed. 91; Tracy v. Ginsberg, 205 U. S. 170, 27 Sup. Ct. 461, 51 L. Ed. 755). Unlike Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520, and Muhlker v. New York, 197 U. S. 544, 25 Sup. Ct. 522, 49 L Ed 872, where protection was afforded to rights acquired on the faith of decisions later overruled, the company seeks here to base rights on a later decision between strangers which, it alleges, is irreconcilable on a matter of law with a decision theretofore rendered against it. The contention is clearly unsound.

As we conclude that there was a contractual duty to repave arising from the acceptance of the franchise, we have no occasion to consider whether there was, as contended, also a statutory duty to do so arising under section 1862, Wisconsin Statutes, which provides that street railways shall "be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance, from time to time prescribe."

Affirmed.

Mr. Justice PITNEY and Mr. Justice McREYNOLDS dissent.

If a railroad was land-aided, payment of carriage of mails otherwise provided by law more than 80 per cent. of the full rates for the was unauthorized, and it was the duty of the Postmaster General to seek recovery of the overpayment under Rev. St. § 4057 (Comp. St. § 7606), relative to recovery of moneys wrongfully paid out of the funds of the post office department.

2. POST OFFICE 21(4)-OVERPAYMENT FOR

CARRYING MAILS MAY BE RECOVERED BY DEB-
IT IN LATER ACCOUNT.

Balances due railroads for carrying the mails although arising under successive quadrennial contracts are regarded as running accounts, and overpayments may be recovered by means of a later debit in the accounts, no matthe error is discovered and the recovery atter how long a time may have elapsed before tempted.

DOES

3. LIMITATION OF ACTIONS ~11(1)
NOT ORDINARILY RUN AGAINST THE UNITED
STATES.

narily run against the United States.
The statute of limitations does not ordi-

4. POST OFFICE 21(4)-RULE AS TO CHANGE

OF DEPARTMENTAL CONSTRUCTION NOT AP-
PLICABLE ΤΟ OVERPAYMENT OF RAILROAD
DUE TO MISTAKE OF FACT.

The rule that when a department charged with the execution of a statute gives it a conformly for a series of years the courts will look struction and acts upon that construction uniwith disfavor upon a change whereby parties who have contracted with the government upon the faith of that construction would be injured did not apply to overpayments to a railroad for carrying the mails, due to a mistake of fact as to whether it was a land-aided railroad.

5. POST OFFICE 21(4)-DUTY OF LAND-AID-
ED RAILROADS AS TO CARRYING MAILS AF-
FECTS EVERY CARRIER THOUGH RECEIVING
NONE OF THE LAND.

The obligation of a land-aided railroad to carry the mails at 80 per cent. of the rates otherwise payable attaches to the road like an easement or charge, and affects every carrier thereafter using the railroad, whatever the nature of its tenure, though it received none of the land and obtained no benefit from the grant.

6. POST OFFICE 21(4)—WHETHER KAILROAD
RECEIVING LAND GRANT WAS IN FACT AIDED
THEREBY IN CONSTRUCTING ROAD WAS IMMA-
TERIAL.

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

The railroad from Port Huron to Flint, in Michigan, sixty miles in length, was completed on December 12, 1871. It was built by the Port Huron & Lake Michigan Railroad Company. By foreclosure of a mortgage exe

*117

8. POST OFFICE 21(4)-COMPANY CLAIMING 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 Railway Company and has since been a part of its system. For forty-one years after the completion of this sixty-mile road the mails were carried over it by the successive owners under the usual postal contracts and payment was made for the service quarterly at full rates. In 1912 the Postmaster General, concluding that this was a land-aided railroad within the provisions of section 13 of the Act of July 12, 1876, c. 179, 19 Stat. 78.

Though a mortgage on the property of a railroad was executed before the company applied for a grant of lands in aid of its construction, and did not purport specifically to cover public lands, one claiming under the mortgage was in no better position than the railroad company to question the obligation of the railroad to carry the mails at the price fixed by Congress, where the trustee under the mortgage claimed the lands as after-acquired property, and the company's interest therein was by 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 REQUIREMENT OF Western. Twenty per cent. of the mail pay

9. PUBLIC LANDS 85
LAND GRANT AS TO TIME OF CONSTRUCTION
WAS CONDITION SUBSEQUENT AND RELIN-
QUISHMENT OF REVERSIONARY INTEREST RE-
MOVED RIGHT TO OBJECT.

The requirement of Act June 3, 1856, granting land to the state of Michigan to aid in the construction of railroads, that the railroads should be completed within 10 years was a condition subsequently annexed to an estate in fee, and the title remained valid until the federal government took action by legislative or judicial proceedings to enforce a forfeiture; and a relinquishment by Congress of its reversionary interest in the land removed all possibility of objection to the validity of the state's patent because of the failure to complete the

line within the prescribed time.

10. POST OFFICE 21(4)-RAILROAD CHARGED
WITH OBLIGATION AS TO CARRYING MAILS
THOUGH STATE PATENT TO LAND WAS IN-
VALID.

Where Congress granted land to the state of Michigan to aid in construction of certain lines of railroad, and the state granted about 36,000 acres to a particular railroad, but the patent was held invalid as to about 30,000 acres, the railroad was nevertheless subject to the obligation imposed by the grant of carrying the mails at such price as Congress might direct.

for that period was found to be $50,359.70; and this amount he deducted from sums accruing to the company under the current mail contract. He also reduced by twenty per cent. the amount otherwise payable under the current contract for carrying the mail over this part of its system. Thus he deducted altogether $52,566.87 from the amount payable on June 30, 1913. The road had in fact been built without any aid through grant of public lands. None had passed to the Grand Trunk Western when it acquired the road; and, so far as appears, that company had no actual knowledge that any of its predecessors in title had acquired any public

land because of its construction. The company insisted that the $52,566.87 thus deducted from its mail pay was withheld without warrant in law, and brought this suit in the Court of Claims to recover the amount. 53 Ct. Cl. 473. Its petition was dismissed and

1 "Sec. 13. 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 eighty per centum of the compensation authorized by this act."

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

the case comes here on appeal.

(40 Sup.Ct.) 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.

*118

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 the grant. Thereupon the rights of each to any part of the public lands was declared forfeited by the state authorities for failure to comply with the state legislation. Subsequently the companies filed maps of definite location in the General Land Office of the Interior Department, which were approved by that office; and on June 3, 1863, the Secretary of the Interior certified to the Governor of Michigan 30,998.76 acres of land lying west of Flint for the company which was to build the line from Grand Haven to Flint, the Detroit and Milwaukee Railway Company. On November 1, 1864, he certified 6,-*interest in the lands; and thereafter the 428.68 acres, all but 9740/100 acres of which Legislature of Michigan (Act of June 9, 1881, to build the line from Flint to Port Huron, Laws Mich. 1881, p. 362), ratified as to the the Port Huron & Milwaukee Railway Com-six thousand acres east of Flint, the action pany. Neither company constructed its line nor received any patent for land. The rights of way and other property of the Port Huron & Milwaukee Railway Company passed through a foreclosure sale to the Port Huron & Lake Michigan Railroad Company; and this corporation built the road in question

lay east of Flint, for the company which was

#119

fact, been any claim or pretense that the company ever contemplated building the line west of Flint; and in Fenn v. Kinsey, 45 Mich. 446, 8 N. W. 64 (1881), that court held that an act of the Michigan Legislature passed May 14, 1877 (Laws 1877, No. 132), which purported to ratify the patent, was inoperative so far as it concerned the lands west of Flint because it impaired rights reserved to the United States by the Act of June 3, 1856. Meanwhile, Congress had relinquished to Michigan, by joint resolution of March 3, 1879, No. 15, 20 Stat. 490, its reversionary

*120

theretofore taken by the state authorities, declaring also that "all deeds and conveyances heretofore executed by the Port Huron & Lake Michigan Railroad Company" "shall be deemed to be of full force and effect" and that "the rest and residue of said lands is vested in said company, its successors or assigns." Whether there remained then any land which had not been disposed of by that company or one of its successors does not ap

1875 proceedings were taken to foreclose the mortgage under which the appellant claims title to the road, the trustee to whom the lands had been transferred for the company's benefit was joined for the purpose of including all such interest in the property to be sold.

during the years 1869, 1870 and 1871. *But it made no application for any part of these lands until three weeks before the comple-pear; but it does not appear that when in tion of the road. Then, on November 18, 1871, it petitioned the State Board of Control, which was charged with the disposition of the public lands, to confer upon it both the 30,998.76 acres west of Flint and the 6,428.68 acres east of Flint which the Secretary of the Interior had certified; and in so applying it asked for the land "for the purpose of aiding in the construction" of its contemplated railroad which was described as extending from Grand Haven to Flint and thence to Port Huron. The board approved of making the grant "for the purpose of aiding in the construction of the road"; but no further action was taken until May 1, 1873, when upon a new petition of the company

"Sec. 5. And be it further enacted, that the United States mail shall be transported over said roads, under the direction of the Post Office Department, at such price as Congress may, by law, direct: Provided, that until such price is fixed by law, the Postmaster General shall have the power to determine the same."

The Act of June 3, 1856, had contemplated a grant of six sections (3,840 acres) per mile of road to be constructed. That would have been 230,400 acres for the sixty miles. The

3 Resolution of March 3, 1879, "That the United States hereby releases to the state of Michigan any

and all reversionary interest which may remain in the United States in such of the lands granted to, and acquired by the said state of Michigan by act of Congress of June third, eighteen hundred and fifty-six, and certified to the said state in accordance with said act, as were granted to aid the construction of the road from Grand Haven to Flint, and then to Port Huron. This release shall not in any manner affect any legal or equitable rights in said lands, which have been acquired, but all such rights shall be and remain unimpaired."

company which built them and those claim- [ the railroad, whatever the nature of the tening under it received at most 6,428 acres. ure. Chicago, Saint Paul, etc., Railway v. The case is one of apparent hardship. Was the judgment of the Court of Claims denying relief required by the applicable rules of law?

United States, 217 U. S. 180, 30 Sup. Ct. 470, 54 L. Ed. 721. The appellant expressly disclaims any contention that the mail clause should not apply because the quantity of land covered by the grant was small as compared with that contemplated by the Act of June 3, 1856, and with the cost of the road.

[6-8] Third. It is contended that this rail

[1-4] First. If the railroad was land-aided, payment of more than eighty per cent. of the full rates otherwise provided by law was unauthorized; and it was the duty of the Postmaster 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

*121

was in fact aided by the land grant in so doing is immaterial. Before the road had been fully completed it asked that the land be granted to it in aid of the construction, and for this purpose only could the grant be made under the act of Congress. It accepted from the state a patent for the land which recited that such was the purpose of the conveyance: and it expressly assented to the terms and conditions of the grant imposed by the Act of June 3, 1856. Thereafter it proceeded to

the Port Huron & Lake Michigan Company remained the owner of the railroad. It had been authorized by its charter to receive the land grant and necessarily to assent to the

be made to it. It is true that the mortgage upon its property, under which appellant claims title, was executed before the company had applied for the grant; and it does not appear that the mortgage purported specifically to cover public lands; but the trustee under the mortgage claimed these lands as after-acquired property and the company's interest in them was, by special proceeding,

deduct the amount of the overpayment from the moneys otherwise payable to the company to which the overpayment had been made. Wisconsin Central Railroad Co. V. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399. There was no attempt to include in the deduction any alleged overpayment to any of appellant's predecessors in title. Balances due for carrying the mails, although arising under successive quadrennial contracts, are regarded as running ac-dispose of the land. Throughout this period counts, and moneys paid in violation of law upon balances certified by the accounting officers may be recovered by means of a later debit in these accounts. It matters not how long a time elapsed before the error in mak-conditions upon which alone the grant could ing the overpayment was discovered or how long the attempt to recover it was deferred. The statute of limitations does not ordinarily run against the United States and would not present a bar to a suit for the amount. See United States v. Thompson, 98 U. S. 486, 25 L. Ed. 194. It is true that when a department charged with the execution of a statute gives it a construction and acts upon that construction uniformly for a series of years, the court will look with disfavor upon a change whereby parties who have contracted with the government upon the faith of that construction would be injured. United States v. Alabama Great Southern Railroad Co., 142 U. S. 615, 12 Sup. Ct. 306, 35 L. Ed. 1134. But here the practice long continued of paying the full rate instead of eighty per cent. thereof was not due to any construction of a statute which the department later sought to abandon, but to what is alleged to be a mistake of fact-due perhaps to an oversight. To such a case the rule of long-continued construction has no application. The appellant must be held to have taken the road with notice of the burdens legally imposed upon it.

[5] Second. If the road was land-aided, it is immaterial that the company which later

*122

#123

made subject to the foreclosure proceedings. The appellant is therefore in no better position than the Port Huron & Lake Michigan Company to question the charge upon the railroad imposed by acceptance of the grant.

[9] Fourth. Appellant points to the fact that the patent to the lands lying west of Flint was later held to be void by the Supreme Court of the State, and insists that thereby the charge or condition concerning the carriage of the mail must be held to have been relinquished. But the patent to the lands east of Flint never was declared void; the company's title to them never was questioned; and the objection to the patent to the western lands did not apply to them. That objection was that the Port Huron & Lake Michigan Railway Company was not a "competent party" to receive the western lands within the meaning of the eleventh section of the Michigan Act of 1857 (Laws 1857, No. 126), because it did not propose to construct a line from Grand Haven Owosso. Bowes v. Haywood, supra, And the attempt by the Legislature

carried the mail over it received *none of the
land and obtained no benefit from the grant.
The obligation to carry mails at eighty per
cent. of rates otherwise payable attached to
the road like an easement or charge; and it to
affects every carrier who may thereafter use 246.

(40 Sup.Ct.)

to make it a "competent party" through the Act of 1877 violated the obligations of the federal government's grant. Fenn v. Kinsey, supra. The only flaw in the title to the lands east of Flint lay in the fact that the railway had not been completed within ten years of the Act of June 3, 1856, as required by that act. This requirement, however, was a condition subsequently annexed to an estate in fee, and the title remained valid until the federal government should take action by legislation or judicial proceedings to enforce a forfeiture of the estate. Schulenberg v. Harriman, 21 Wall. 44, 63, 64, 22 L. Ed. 551; Railroad Land Co. v. Courtright, 21 Wall. 310, 316, 22 L. Ed. 582. So far from doing so Congress relinquished by joint resolution its reversionary interest in the land, and thereby removed all possibility of objection on its part to the validity of the patent; and the state of Michigan later ratified the patent by legislation admitted to be valid.

"Said railroads shall be and forever remain public highways for the use of the government of the United States, free from toll or other charge upon the transportation of any property States mail shall be transported over said railor troops of the United States; and the United

*125

roads, *under the direction of the Post Office Department, at such price as Congress may by law direct.

The order of the Board of Control of May 1, 1873, directing the transfer of the land to the Port Huron & Lake Michigan Company, and the patent issued by the Governor were founded upon the authority of section eleven of this act; and under date of May 30, 1873, the company accepted the lands with the burdens they imposed. The railroad, whose owners and constructors accepted aid derived from these lands, became charged by operation of law with the burden of transporting the mails. The question whether that com

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

*124

legality of the pat*ent to the western lands constituted a failure of consideration which voided the contract with the government. The burden of the mail clause, it says, could be imposed only by contract between the government and Port Huron & Lake Michigan Company. The contract was for land west as well as east of Flint-and the land west could legally be granted only if the company contemplated building the road westward to Grand Haven. As there was not even a pretense that it contemplated such construction, the contract was illegal. The government's claim under the mail clause must fail, because no rights can be acquired under an illegal contract. So the appellant contends. Such a view is the result of regarding the transaction as a promise by the railway to the government to carry the mail 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, and not to the property"-clearly not to a mere licensee. However, it is settled that the obligation in question is not of this nature but does attach to the property, even when used by a licensee. Chicago, St. Paul, etc., Ry. v. United States, 217 U. S. 180, 30 Sup. Ct. 470, 54 L. Ed. 721. The obligation of a land-aided railway to carry the mail at a price fixed by Congress is a charge upon the property. The public lands were granted to Michigan to aid the construction of certain railways upon certain conditions. The Legislature of Michigan could not dispose of the lands except in accordance with the terms of the grant. By the Act of February 14, 1857, it accepted the grant and enacted legislation to give legal effect to the conditions of it. Section 4 of the act is as follows:

burdens if it had foreseen the invalidity of the title to the western lands, is wholly immaterial. The burden attached upon the acceptance of any aid whatsoever no matter how disproportionate to the cost of constructing the portion so aided.

The transaction called illegal was one be

tween the company and the state authorities. The United States was no party to it. It had merely supplied property which the parties to it used. The government never objected to the disposition made of it; and evidenced its approval by passage of the joint resolution of March 3, 1879. No reason exists why rights by way of charge upon the railroad which were acquired by the government through the acceptance of six thousand acres of public land, should be invalidated by the alleged illegality of the state authorities' action in issuing a patent to a wholly different tract.

Affirmed.

(252 U. S. 273)

STATE OF MINNESOTA v. STATE OF
WISCONSIN.

(Argued Oct. 16 and 17, 1919. Decided March 8, 1920.)

1. STATES

No. 16, Original.

12(2)-LOCATION OF MOUTH OF ST. LOUIS RIVER, FIXING BOUNDARY OF WISCONSIN STATED.

Within the meaning of Act Cong. Aug. 6, 1846, describing the northern boundary of Wisconsin as running through the center of Lake Superior to the mouth of the St. Louis river, the mouth of such river is not southeast of

Big Island, where the banks, channel, and current characteristic of a river end and lake features begin, but at the deep channel between Minnesota Point and Wisconsin Point.

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

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