4th. In the through rate from Chicago and other points east of Council Bluffs the bridge charges, as apportioned by the Union Pacific Railroad Company, are higher than the rate per mile for other portions of the line; shall these charges be paid, or only a pro rata of them? Upon these several questions I submit the following: 1st. The bridge was built and is owned by the Union Pacific Railroad Company, which company has, under the laws above referred to, and the general right to control its own property, the right to prescribe the charges for the transportation over the same, subject, however, to the restrictions imposed by said laws; the Attorney General has, also, under date of May 7, 1873, given an opinion that for all purposes of the Government the bridge must be treated as a part of the Union Pacific Railroad line; therefore, in view of these facts, and the further facts that the several roads have varying rates, that these rates are subject to frequent changes, that confusion and irregu larity would likely arise in the settlement of accounts by different officers if an average of the rates of all the roads is to govern, and that railroad companies interested would seldom know what rates would be allowed by the Government for any particular service, it seems to me proper that the rates to be allowed for the transportation over the bridge shall be the rates allowed the Union Pacific Railroad Company for like service upon its main line, and not an average of the rates of all the roads leading to the bridge. This seems to me to be a reasonable construction to put upon the law, and is not, I think, in conflict with the spirit thereof the intention of Congress evidently being not to allow the company to charge greater rates for transportation over the bridge, than are paid for like services upon other portions of its road. 2d. The lowest rate given by the Union Pacific Railroad Company is, for 10 miles, 8, 7, 6, and 5 cents per 100 pounds for first, second, third, and fourth-class freight, respectively, and for passengers 20 cents each for 4 miles. No rates are given for less distances. All shippers have to pay these rates whether the stores go one or ten miles, and the Government, in settling accounts for transporting property, say 4, 8, or 10 miles, pays, in accordance with general railroad custom and usage, the rate for 10 miles. Now, shall it pay these rates for transportation over the bridge, or only four-tenths of these rates? The law says "no higher charge shall be made than the rate per mile paid," &c. There are no rates per mile given; they are fixed for certain specified distances, and it seems not in conflict with the spirit of the law to pay the same rates for transportation over the bridge, 4 miles, that are paid upon other portions of the road for like distances, to wit: 10 miles. 3d. Upon all stores crossing the bridge and going to points beyond Omaha, I think a pro rata of the charge for the whole distance the stores are carried should be allowed for their transportation over the bridge, to be added to the charge from Omaha ; for instance, stores going from Council Bluffs to, say Ogden, are carried 1,033 miles; the rates are fixed from Omaha, 1,029 miles, in all cases, and do not cover the bridge charges (except when the stores come from Chicago or some other point east of Coun. cil Bluffs), in such cases 4-1029 of the charges from Omaha to Ogden should be added for bridge transportation. 4th. The through rate from Chicago, and other points east of Council Bluffs where there is a through rate, covers the bridge charges, and, of course, nothing further should be allowed; those charges are, however, higher than the rate per mile for their transportation over other portions of the line, and it may well be questioned whether they can be allowed or not. It is true that the Department cannot fix the rates for transportation over the road, nor over the bridge. The company may charge whatever rates seem to it proper, so they are not unreasonable (see act of July 1, 1862, 12 Stat., 489, sec. 6); and if the Union Pacific Railroad Company's proportion of the through rate, from Chicago to San Francisco, for instance, which for passenger transportation is $110, is $54.50, I do not see how the Department can avoid paying it; but when the company apportions 50 cents of that sum for the bridge charges, which is 313 cents greater than the rate per mile for a like distance upon other portions of the route, and so long as the railroad company makes separate accounts for the bridge and charges 50 cents for each passenger, I do not see how those charges can be allowed. I deem it important that these questions be properly decided, and as the Second Comptroller of the Treasury finally passes upon ail the accounts of the Union Pacific Railroad Company, I recommend that they be submitted to him for decision. I am, very respectfully, your obedient servant, M. C. MEIGS, Quartermaster General, Bot. Maj. General, U. S. A. In the matter of the claim of the Union Pacific Railroad Company for the payment of transportation of troops and munitions of war of the United States at tariff rates over the bridge across the Missouri River between Omaha and Council Bluffs. TREASURY DEPARTMENT, SIR: I have considered the questions relating to the above claim presented in the report of the Quartermaster General to the Secretary of War and by him referred to this Office. The authority of the Union Pacific Railroad Company to construct a bridge across the Missouri River, connecting Council Bluffs, in Iowa, with Omaha, in Nebraska, is derived from Congress by the act of February 24, 1871, 16 Stat., 430, and, in pari materia, by the act to authorize the construction of certain bridges, and to establish them as post-roads, approved July 25, 1866, 14 Stat., 244, so far as the same is applicable thereto. The third section of this act provides that "no higher charge shall be made for the transmission over the same of the mails, the troops, and the munitions of war of the United States, than the rate per mile paid for their transportation over the railroads or public highways leading to the said bridge." And by the second proviso of the act of February 24, 1871, above referred to, “Congress shall at all times have power to regulate said bridge, and the rates for the transportation of freight and passengers over the same, and the local travel hereinbefore provided for." The report of the Quartermaster General states that "the bridge, with the approaches, and the tracks leading to the transfer grounds, is four miles long, and that the charges for the transportation, local and through, of freight are five cents per 100 pounds, and fifty cents each for passengers." That "these rates are higher than the rates charged by and paid to the railroads leading to said bridge, either in Iowa or Nebraska, and are higher than can be paid to the Union Pacific Railroad Company under the law above quoted," the act of July 2, 1864, secs. 9 to 13, Stat., 356, also included. It has already been held by this Office that the bridge above described constitutes a portion of the Union Pacific Railroad. Vide decision of this Office of May 20, 1872, and the opinion of the Attorney General of May 7, 1873, sustaining this decision. For these reasons I am of the opinion that when the Union Pacific Railroad Company transports the "troops and munitions of war of the United States" from places west of said bridge and over it, the rates to be allowed for such service should be, pro rata, for like service upon its main line. The report of the Quartermaster General continues: "The lowest rate given by the Union Pacific Railroad Company is, for 10 miles, 8, 7, 6, and 5 cents per 100 pounds for first, second, third, and fourth-class freight, respectively, and for passengers 20 cents each for 4 miles. No rates are given for less distances. All shippers have to pay these rates whether the stores go one or ten miles, and the Government, in settling accounts for transporting property say 4, 8, or 10 miles, pays, in accordance with general railroad custom and usage, the rate for 10 miles; now, shall it pay these rates for transportation over the bridge, or only four-tenths of these rates?" Inasmuch as there are no rates per mile given, but only for the minimum distance, 10 miles, which is in accordance with general railroad custom and usage, I am of the opinion that the customary rates paid for this distance should also be paid for transportation over the bridge. The Quartermaster General further states, that "upon all stores crossing the bridge and going to points beyond Omaha, I think a pro rata of the charge for the whole distance the stores are carried should be allowed for their transportation over the bridge, to be added to the charge from Omaha. For instance, stores going from Council Bluffs to, say, Ogden are carried 1,033 miles; the rates are fixed from Omaha, 1,029 miles. in all cases, and do not cover the bridge charges (except when the stores come from Chicago or some other point east of Council Bluffs); in such cases 4-1029 of the charges from Omaha to Ogden should be added for bridge transportation." In the case presented I concur with the Quartermaster General that the rate for transportation over the bridge should be a pro rata of the charge for the whole distance. "The through rate from Chicago and other points east of Council Bluffs, where there is a through rate, covers the bridge charges, and, of course, nothing further should be allowed; those charges are, however, higher than the rate per mile for the transportation over other portions of the line, and it may well be questioned whether they can be allowed or not." Vide report of Quartermaster General. If this discrimination is made in consequence of the special tariff rates over the bridge, then it is plain that the law will not permit the railroad company to charge a higher rate to places east of Council Bluffs, where there is a through rate, than it does for transportation over other portions of its line. Thus, in the example presented by the Quartermaster General, the rate for passenger transportation from Chicago to San Francisco is $110, and the proportion allowed the Union Pacific Railroad is $54.50; but of this sum 50 cents is paid on account of the bridge, which is 313 cents greater than the rate per mile for a like distance upon other portions of the route. This extra charge is, therefore, a discrimination made in tariff rates on account of the bridge, and should be disallowed in all similar cases. The report of the Quartermaster General is herewith returned. Very respectfully, your obedient servant, Hon. W. W. BELKNAP, J. M. BRODHEAD, Comptroller. Secretary of War. [Appendix B.J WAR DEPARTMENT, To the Honorable the SECRETARY OF WAR: Washington City, March 19, 1875. SIR: The law making appropriations for the support of the Army for the fiscal year ending June 30, 1876, and for other purposes, approved March 3, 1875, provides: "That no money shall hereafter be paid to any railroad company for the transpor. tation of any property or troops of the United States over any railroad which, in whole or in part, was constructed by the aid of a grant of public land on the 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: * * Provided, That the foregoing restric tion shall not apply, for the current fiscal year, nor thereafter, to roads where the sole condition of transportation is that the company shall not charge the Government higher rates than they do individuals for like transportation, and when the Quartermaster General shall be satisfied that this condition has been faithfully complied with." A similar provision, with the exception of the proviso quoted, and the fact that the prohibition applies only to the appropriations for the fiscal year ending June 30, 1875, was inserted in the act making appropriations for the support of the Army for the fiscal year ending June 30, 1875, approved June 16, 1874. That law was construed by the Attorney General as applying to all railroads that had received grants of public lands upon any conditions whatsoever for the use of such roads (see General Orders No. 84, A. G. O., of 1874, copy inclosed), and embraced all railroads known as Land Grant Railroads, with the exception of the Oregon Central Railroad (see General Orders No. 107, A. G. O., of 1874), and the Utah Central Railroad, which railroad was decided by the Second Comptroller of the Treasury, January 14, 1875, not to be a Land Grant Railroad within the meaning of the act of June 16, 1874. An examination of the table of Land Grant Railroads published in General Orders No. 98, A. G. O., of 1872, copy inclosed, will show that there are fourteen (14) railroads that received grants of land on conditions of one kind or another, having reference to Government transportation, other than the one that the railroad "shall be a public highway for the use of the Government free from toll or other charge." These roads are (see pages 24 to 29 inclusive) — No. 3. The Atlantic and Pacific; No. 10. The Central Pacific-main line; No. 11. The Central Pacific-western division; No. 13. The Central Branch Union Pacific; No. 15. The Denver Pacific; No. 26. The Kansas Pacific; No. 42. The New Orleans, Baton Rouge and Vicksburg; No. 43. The Northern Pacific; No. 52. The Sioux City and Pacific; No. 56. The St. Joseph and Denver City; No. 58. The Southern Pacific of California-main line; No. 59. The Southern Pacific of California-branch line; No. 61. The Texas Pacific; and On pages 32 to 40, inclusive, will be found full reference to the laws, and the conditions for the use of the roads by the Government, attached. An examination of these laws will show that there are other conditions than the one that the company shall not charge the Government higher rates than they do individuals for like transportation;" but whether those conditions are of such a nature as will exclude any or all of the roads above named from the benefits of the proviso above quoted is a question which I respectfully submit for decision by such of the law officers or accounting officers of the Government as the Secretary of War may think proper. I am of opinion that it was the intention of Congress to except from the prohibition "that no money shall hereafter be paid to any railroad company," &c., all roads that are not required in some way or other to give the free use of their roads for the transportation of troops or property of the United States, or to transport the same free of cost, charge, or expense to the United States. If this opinion is correct, then it appears to me that all the roads named in this communication are included in the proviso which excepts certain roads from the operation of that portion of the law forbidding payment to those roads "constructed, in whole or in part, by the aid of a grant of public land on the condition that such railroad should be a public highway for the use of the Gov. ernment of the United States free from toll or other charge, or upon any other conditions for the use of such roads for such transportation." Another question which I desire decided is, does the proviso "that the foregoing restrictions shall not apply for the current fiscal year, nor thereafter, to roads where the sole condition of transportation is that the company shall not charge the Government higher rates than they do individuals for like transportation," repeal the act of June 16, 1874, so far as the latter forbids payment out of the appropriations for the current fiscal year to the roads above named, so as to permit payment to those roads for services that have been rendered, or that may be rendered, during the current fiscal year? Of course it is understood that the act of March 3, 1873, prohibiting payment to certain roads indebted to the United States for interest upon bonds of the United States issued to said companies, is still in force. (See General Orders No. 48, A. G. O., of 1873, copy inclosed.) I am, very respectfully, your obedient servant, M. C. MEIGS, Quartermaster General, Brevet Major General, U. S. A. WAR DEPARTMENT, March 23, 1875. Respectfully submitted to the Second Comptroller of the Treasury for opinion. H. T. CROSBY, Chief Clerk. SECOND COMPTROLLER'S OFFICE, April 5, 1875. Respectfully returned to the Secretary of War with the remark that after exami nation of the statutes of Congress relating to the Land Grant Railroads, I concur with the view expressed by the Quartermaster General in his report to the Secretary of War, dated March 19, 1875: |