Statement of the Case.

continuing until July, 1879, the Postmaster General allowed and paid for the carriage of the mails the customary rates paid to non-land-grant companies. Upon the informal opinion of the Assistant Attorney General for the Post Office Department, the Postmaster General issued an order, June 2, 1880, directing that from July 1, 1879, the pay should only be at the rate provided by Congress for land-grant roads, namely, eighty per cent of the full amount. January 26, 1881, upon a reconsideration, orders were issued recalling the order of June 2, 1880, whereupon the department returned to the earlier practice and paid full rates for the carriage of the mails until January 8, 1884, when Postmaster General Gresham again adopted the construction of June 2, 1880, and applied the same to the compensation of these roads from and after July 1, 1883, and that construction has been applied from thence hitherto, and payment made at the rate of eighty per cent of the amount paid non-land-grant roads.

In addition to reducing the pay for carrying the mails for the current and subsequent years, namely, from July 1, 1883, the Postmaster General restated the account for the carriage of the mails prior to July 1, 1883, both during the period when they were carried by the construction company and during the period from about December, 1877, to July 1, 1883, in which they were carried by the Wisconsin Central Railroad Company and deducted out of moneys which had been earned since July 1, 1883, the excess over the eighty per cent rate which had been paid during the previous years.

Suit was brought in the Court of Claims May 26, 1887, by the Wisconsin Central Railroad Company against the United States to recover an alleged balance due as compensation for carrying the mails. The Court of Claims allowed the railroad company $6448.80 as being the amount deducted from the claimant's earnings in 1886 and 1887 for payments in excess of the eighty per cent rate made to the construction company while that company was operating the roads, but the Court of Claims held that Postmaster General Gresham's construction was correct, and that the claimant was restricted to the eighty per cent rate, and, therefore, disallowed the

Argument for Appellant.

claim for the money withheld against the excess and also the amount of the claim for the period subsequent to July 1, 1883. The sums which had been paid to claimant in excess of the eighty per cent rate and which were deducted from subsequently earned pay, amounted to $12,532.43. The twenty per cent subsequent to July 1, 1883, was $16,343.58.

The Court of Claims gave judgment in favor of the Wisconsin Central Railroad Company for $6448.80, and the railroad company appealed. The United States did not appeal. The opinion of the court, by Nott, J., is reported 27 C. Cl.

440.

Mr. Louis D. Brandeis for appellant. Mr. Edwin H. Abbot, Mr. Howard Morris, and Mr. William H. Dunbar were on his brief.

I. The grant made by the act of 1864 was not upon condition that the mails should be carried at such rates as Congress might fix.

That act contains no express condition for the transportation of the mail, and the circumstances leading to its passage show that Congress did not intend to impose such a condition. The intention of Congress is to be ascertained from the facts attending the passage of the act, as well as from its language. Winona & St. Peter Railroad v. Barney, 113 U. S. 618; Wisconsin Central Railroad v. Forsythe, 159 U. S. 46; Caledonian Railway v. North Bristol Railway, 6 L. R. App. Cas. 114.

The facts show that Congress did not intend to impose this condition. Such an intention is not inconsistent with the policy of Congress. Union Pacific Railroad v. United States, 104 U. S. 662. This condition was not incorporated by reference in the act of 1864; and an analysis of that act shows that no such incorporation was intended. See McRoberts v. Washburne, 10 Minnesota, 23. The structure of the act indicates that the words "terms and conditions" did not refer to the provision in the act of June 3, 1856. Atkins v. Disintegrating Co., 18 Wall, 272; In re Cambrian Railways Com

Argument for Appellant.

pany's Scheme, L. R. 3 Ch. App. 278; Thompson v. Farrer, L. R., 9 Q. B. D. 372; People v. Davenport, 91 N. Y. 574.

The language used does not require a construction imposing such a condition. If it does, the words in question should be disregarded as inconsistent with the general scope of the act. Ebbs v. Boulnois, 10 Ch. App. 479; People v. Davenport, 91 N. Y. 574; Ross v. Barland, 1 Pet. 655.

The construction contended for by the claimant was adopted by the Post Office Department contemporaneously with the passage of the act of July 12, 1876, c. 179, and should be followed. United States v. Alabama Great Southern Railroad, 142 U. S. 615.

II. Even if § 13 of the act of July 12, 1876 be held applicable to the Wisconsin Central Railroad, payments made under a different construction of the act of May 5, 1864, cannot now be used to defeat the claim for money confessedly earned.

(a) The order of the Postmaster General to withhold this money on account of alleged past overpayments involved a reversal of the decisions of his predecessors. Such reversal was in defiance of the well established rule that the decisions of executive officers involving the construction of a law are final upon the same executive department, not as to the rule of law decided, but as to the decision of the particular case, and hence was illegal. United States v. Bank of the Metropolis, 15 Pet. 377; Kendall v. Stokes, 3 How. 87; Ex parte Randolph, 2 Brock. 447; Stotesbury v. United States, 146 U. S. 196; United States v. Stone, 2 Wall. 525; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Noble v. Union River Logging Railroad, 147 U. S. 165; Waddell v. United States, 25 C. Cl. 323; Armstrong v. United States, 29 C. Cl. 148; Cotton v. United States, 29 C. Cl. 207.

(b) Such alleged overpayments would not even have entitled, the government to recover by suit the money paid, because the money was paid, in the main, after a deliberate consideration of the question involved by the Postmaster General, to whom the duty of deciding it was committed, and the accounts with the claimant covering the period in which such overpayments are alleged to have been made had been settled. Elliott v.

Opinion of the Court.

Swartwout, 10 Pet. 137; Lamborn v. County Commissioners, 97 U. S. 181; Brisbane v. Dacres, 5 Taunt. 143; Midland Great Western Railway v. Johnson, 6 H. L. Cas. 798; Marshall v. Collett, 1 Younge & Col. (Exch.) 232; Trigge v. Lavallée, 15 Moore P. C. 270; Clarke v. Dutcher, 9 Cowen, 674; United States Bank v. Daniel, 12 Pet. 32; Rogers v. Ingham, 3 Ch. D. 351; Queen v. Lord Commissioners of Treasury, 16 Q. B. 357; Wayne County v. Randall, 43 Michigan, 137; Hearne v. Marine Ins. Co., 20 Wall. 488; Griswold v. Hazard, 141 U. S. 260; Hunt v. Rousmanier, 8 Wheat. 174; 1 Pet. 1; McArthur v. Luce, 43 Michigan, 435; Onandaga Supervisors v. Briggs, 2 Denio, 26; Hillborn v. United States, 27 C. Cl. 547; 163 U. S. 342; Patterson v. United States, 28 C. Cl. 321; United States v. Barker, 12 Wheat. 559; Brent v. Bank of Washington, 10 Pet. 596; United States Bank v. United States, 2 How. 711; The Siren, 7 Wall. 152; Smoot's case, 15 Wall. 36; Cooke v. United States, 91 U. S. 389; United States v. Bostwick, 94 U. S. 53; United States v. State Bank, 96 U. S. 30; McKnight v. United States, 98 U. S. 179; Badeau v. United States, 130 U. S. 439. In the last case the court say: "but inasmuch as the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex æquo et bono, he ought to return."

(c) Even if the government had the right to recover by suit the money so paid, such right could not be availed of in this proceeding, as the government entered a general traverse, and did not file any counter claim. United States v. Burns, 12 Wall. 246; Clark v. United States, 95 U. S. 539; United States v. Behan, 110 U. S. 338; United States v. Carr, 132 U. S. 644; United States v. Stahl, 151 U. S. 366.

Mr. Assistant Attorney General Dodge for appellees.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

Appellant contends that it was not subject to the eighty per cent rate, and hence that it is entitled to recover both the

Opinion of the Court.

items disallowed by the Court of Claims; and also that, even if this position be untenable, it should not have been charged with amounts which had already been settled and paid under the view that the company was not so restricted, and should have been awarded the sum of $12,532.43 withheld.

The act of 1864 expressly provided that the grant was made upon "the same terms and conditions as are contained in the act granting lands to said State to aid in the construction of railroads in said State, approved June three, eighteen hundred and fifty-six," and that act contained in its fifth section. the following: "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."

But it is argued that the "terms and conditions" referred to do not embrace the terms and conditions prescribed by section 5, because the general subject-matter of every other section of the act of 1856 was expressly reenacted, and therefore it must be inferred that Congress intended to express in the act of 1864 all the terms and conditions which were imposed upon the grant thereby made; or that, in any event, the words should be limited to the terms and conditions of section 1 of the act of 1856.

The difficulty is that to hold that all the terms and conditions imposed upon the grant were specifically expressed in the act of 1864 itself would be to render the reference to the act of 1856 meaningless and to eliminate, by interpretation, the words "upon the same terms and conditions as are contained in" that act; and we are of opinion that the explicit language of the statute cannot thus be done away with.

The existence of terms and conditions in the act of 1856 left wholly unmodified by the reënactments of the act of 1864 preclude the argument that the words so used are without meaning; and, moreover, the settled rule is that statutes granting privileges or relinquishing rights of the public are to be strictly construed against the grantee.

Reference to the two acts will show that the changes in the