have occurred since the treaty by avulsions, relictions, erosions, accretions, or other natural causes, and the practical construction and application of the Treaty of 1819 by the governments and states concerned and their inhabitants.

Frederick S. Tyler, Esq., of Washington, District of Columbia, is hereby appointed as commissioner to take said further evidence and report the same to the court, but without findings or conclusions; and if for any reason said Frederick S. Tyler shall be unable to act as such commissioner, or to complete his duties as such, a commissioner, to act in his place, shall be named by the Chief Justice or the senior Associate Justice of this court.

mails reduction.

1. An arrangement between the Postmaster General and a railway company whereby compensation for carrying the mails for four years was fixed "unless otherwise ordered" at certain sums, with express notice that the railway company regulations which are now or may become would be "subject to all the postal laws and applicable during the term of the service,” is not a contract which could not be affected by the subsequent enactment of the Act of August 24, 1912, § 4, under which “when, after a weighing of the mails for the purpose of readjusting the compensation for mails are diverted therefrom or thereto, the their transportation on a railroad route, Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as he may deter verified to him as in other cases, and readmine, and have the weights stated and just the compensation on the routes affected accordingly," and the railway company cannot discontinue an important item of the services upon which the compensation was computed and still demand the same pay.

Subject to the limitations hereinafter imposed, the times and places of taking such testimony, and the order of taking the same, may be fixed by stipulation of the parties, and, if they shall fail to stipulate, shall be fixed by the commissioner. The taking of testimony shall commence not later than the 15th day of August, 1921, and shall be concluded on or before the 29th day of October following. Unless the parties otherwise stipulate, the evidence in chief on the part of the United States shall be sented first, that on the part of the state of Oklahoma next, and that on the part of the state of Texas next; and the Postoffice-compensation for carrying rebuttal evidence of the respective parties shall be presented in the same order. [610] The hearing on the counterclaim of the state of Texas, and the taking of testimony thereon, is reserved for further order.

pre

STATE OF OKLAHOMA, Complainant,

V.

STATE OF TEXAS, Defendant; the United
States of America, Intervener.

(See S. C. Reporter's ed. 610.)

[No. 23, Original.]

June 1, 1921.

Order announced by Mr. Justice McKenna:

It is ordered that no petition in intervention may hereafter be filed herein under the order of June 7, 1920, except upon special leave given by the court.

[For other cases, see Postoffice, IV. c. in Digest Sup. Ct. 1908.]

mails diversion-weighing.

may be ascertained by a weighing of the diverted mails for such number of days as the Postmaster General may direct under the Act of August 24, 1912, § 4, providing that "when, after a weighing of the mails for the purpose of readjusting the compensation for their transportation on a railroad route, mails are diverted therefrom or thereto, the Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as stated and verified to him as in other cases, he may determine, and have the weights and readjust the compensation on the routes affected accordingly: Provided, That no readjustment shall be made unless the diverted mails equal at least 10 per centum of the average daily weight on any of the routes affected." This is not a recurrence to the quadrennial weighing for ninety days, but a limited investigation for a limited purpose.

2. The effect of a diversion of the mails

[For other cases, see Postoffice, IV. c. in
Digest Sup. Ct. 1908.]
Postoffice- compensation for carrying
mails diversion — weighing.

ing is accepted by the Act of August 24, 3. The result of the last general weigh1912, § 4, as a near enough basis for the 10 per cent test created by the provisions of

that section that "when, after a weighing of Submitted April 26, 1921. Decided June 6, the mails for the purpose of readjusting the compensation for their transportation on a railroad route, mails are diverted there

290, 40 Sup. Ct. Rep. 162; Schaff v. United States, 55 Ct. Cl. 405.

The Postmaster General's remedy under U. S. Rev. Stat. § 3962, Comp. Stat. § 7450, 8 Fed. Stat. Anno. 2d. ed. p. 163, and the Act of August 24, 1912, was appliable to the delinquency in question. Kansas City Southern R. Co. v. United States, 252 U. S. 147, 64 L. ed. 500, 40 Sup. Ct. Rep. 257; Louisville & N. R. Co. v. United States, 53 Ct. Cl. 238; Chicago, M. & St. P. R. Co. v. United States, 127 U. S. 406, 32 L. ed. 180, 8 Sup. Ct. Rep. 1194.

Appellant was free to decline to carry the mails under the readjusting order, and, having carried them, is bound by the terms of pay fixed thereby.

Eastern R. Co. v. United States, 129 U. S. 391, 32 L. ed. 730, 9 Sup. Ct. Rep. 320; Delaware, L. & W. R. Co. v. United States, 249 U. S. 385, 63 L. ed. 659, 39 Sup. Ct. Rep. 348; Texas & P. R. Co. v. United States, 28 Ct. Cl. 379; Mail Divisor Cases (Northern P. R. Co. v. United States), 251 U. S. 326, 64 L. ed. 290, 40 Sup. Ct. Rep. 162; New York, N. H. & H. R. Co. v. United States, 251 U. S. 123, 64 L. ed. 182, 40 Sup. Ct. Rep. 67.

The act is not to be construed as operating retrospectively merely because occurrences to which the same is applicable are in part drawn from a time antecedent to the passage of the act.

Johnston v. United States, 17 Ct. Cl.

171.

Mr. Justice Holmes delivered the opinion of the court:

|

any postal laws or regulations, and that it must be understood that from the beginning of the contract term named, [612] and during the continuance of the service, the company would be "subject, as in the past, to all the postal laws and regulations which are now or may become applicable during the term of the service." In answer to a reply to this letter it was reiterated that it must be understood that the company would be "subject, as in the past, to the usual customs and practices in relation to railroad mail service as well as to the conditions stated in my letter" of June 30, 1910. The weighings took place, and on September 15, 1910, by a notice approved by the Postmaster General on September 22, the claimant was informed that the compensation for route No. 153,010 (the route chiefly concerned) had been fixed from July 1, 1910, to June 30, 1914 "(unless otherwise ordered)," at certain sums, "upon returns showing the amount and character of the service," for the usual time-(ninety working days). The notice added: "This adjustment is subject to future orders and to fines and deductions, and is based on a service of not less than six round trips per week." This correspondence is relied upon by claimant as a contract fixing its pay for four years.

In 1906 the claimant had established a fast mail train from Parsons, Kansas, that connected with the Frisco System train No. 3, at Vinita, Oklahoma, with further connections that carried the This is a claim for $9,429.92 additional mail to Houston, Galveston, and San pay for carrying mails between July 1, Antonio, Texas. It had guaranteed the 1912, and July 1, 1914. The claimant maintenance of the service until July 1, had been transporting them under an 1910, and was maintaining it at the adjustment of compensation that ex- time of the readjustment in that year. pired on June 30, 1910. In contempla- Its return on the distance circular for tion of the usual quadrennial readjust- route No. 153,010 showed Vinita as a ment by weighing, the Postmaster Gen- station where mails were put on and put eral sent to the claimant the customary off trains, and the adjustment showed form of distance circulars to be filled allowances for mails from Parsons to out, and to be accompanied by the Vinita and from Vinita to Texas. The latest working schedules of trains op- claimant gave no notice that the fast erated over the routes concerned. The train would be discontinued. Early in circular contained this clause: "The 1912, however, it was discontinued, the company named below agrees to accept Postoffice Department protesting that it and perform mail service upon the con- was a violation of contract and being ditions prescribed by law and the regu- compelled thereby to [613] make other lations of the Department applicable to provisions for the mails concerned. railroad mail service." The claimant Thereafter, on November 22, 1912, the signed the circular, protesting against Department ordered the mails diverted certain regulations, and was answered to other lines to be weighed for twentyon June 30, 1910, that the Department would not enter into contract with any railroad company by which it might be excepted from the operation or effect of

one days, beginning on November 26, so far as such mails could be definitely identifi d, the mails not to be weighed in case of doubt,-that provision, of course, be

which the compensation was computed, and still demand the same pay.

The construction of the statute also seems to us to be tolerably plain upon the points mainly argued. The effect of the diversion of mails may be ascertained by "a weighing of such mails" (that is, very plainly, the diverted ones) for such number of days as the Postmaster General may determine. This is not a recurrence to the expensive quadrennial weighing for ninety days, but a lim

The result of the last general weighing, which is sufficient to afford a satisfactory basis for payment, is accepted by the statute as a near enough basis for the 10 per cent test that it creates; the object of the test being merely to show that the diversion has been substantial. The ratio fixed had no other importance than to indicate a case for readjustment, and was not necessary even for that, as was shown by the repeal of the proviso in a few years. Act of May 18, 1916, chap. 126, § 5, 39 Stat. at L. 159, 161, Comp. Stat. § 7585, Fed. Stat. Anno. Supp. 1918, pp. 633, 636.

ing favorable to the road. The result was an order of February 13, 1913, approved by the Postmaster on March 1, 1913, by which the compensation on route No. 153,010 was diminished by $10,914.04 a year, from July 1, 1912, and that of two other routes increased by $6,199.08. The claimant, contending that the whole proceeding was illegal, sues for the difference between the new and the old allowance for the two years when the new order was enforced. The government justifies the Depart-ited investigation for a limited purpose. ment's course under the arrangement that we have recited, the previously existing law, and the Act of August 24, 1912, chap. 389, § 4, 37 Stat. at L. 539, 554, Comp. Stat. § 7314, 8 Fed. Stat. Anno, 2d ed. p. 209: "When, after a weighing of the mails for the purpose of readjusting the compensation for their transportation on a railroad route, mails are diverted therefrom or thereto, the Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as he may determine, and have the weights stated and verified to him as in other cases, and readjust the compensation on the routes affected accordingly. Provided, That no readjustment shall be made unless the diverted mails equal at least ten per centum of the average daily weight on any of the routes affected: Provided further, That readjustment made hereunder shall not take effect before July first, nineteen hundred and twelve, and shall be for diversions occurring after January first, nineteen hundred and twelve." The claimant contends that it had a contract that could not be affected by this statute, and that the statute was not followed in what was done.

The contention that the arrangement between the Department [614] and the claimant was a contract that the statute could not affect is sufficiently answered by Delaware, L. & W. R. Co. v. United States, 249 U. S. 385, 63 L. ed. 659, 39 Sup. Ct. Rep. 348, and Mail Divisor Cases (Northern P. R. Co. v. United States) 251 U. S. 326, 64 L. ed. 290, 40 Sup. Ct. Rep. 162, coupled with the express notice that the railroad would be "subject to all the postal laws and regulations which are now or may become applicable during the term of the service." Moreover, it is an extravagant interpretation of the adjustment to suppose that the railroad could discontinue an important item of the services upon

a

The statute itself contemplates readjustment in respect of past services, since it was not approved until August 24, 1912, and allows a readjustment from the first of the previous July. As the change in the pay is made in respect of a change that has occurred in the service by which the current pay was fixed, the railroad suffers no injustice, and, as we have said, by the terms of its arrangement it took the risk of such a statute being passed.

[615] There is an ambiguity in the words "10 per centum on any of the routes affected." The railroad seems to have contended that they required the diverted mails to equal 10 per cent of the average daily weight on all of the routes affected. The Department construed them to mean that it was enough if the diversion amounted to the 10 per cent on any one of the routes. The first interpretation that occurs to a reader may be that the routes are considered separately, and that no readjustment shall be made in respect of any route unless the diversion on the route equals 10 per cent. But the routes mentioned are supposed to be all affected by the same di version, and therefore are considered collectively. If a readjustment is made as to one route, it is reasonable to take into account the offsets on others, arising from the same change. That being so, there is a literal plausibility in the railroad's contention; but having in