Argument for Plaintiff in Error.

225 U.S.

indicated the manner in which the railway company was to receive pay for the rent of its cars. The order of the

. Assistant Postmaster General in attempting to change such basis was not only in excess of the postal régulations, but sought to impose conditions not embraced in the law nor covered by any contract with the railway company, either express or implied. The order of the Postmaster General is a plain attempt to amend or add to the act of Congress. That is not permissible. Morrill v. Jones, 106 U. S. 466, 467; Bruhl Bros. v. Wilson, 123 Fed. Rep. 957, 958; Hoover v. Salling, 110 Fed. Rep. 43.

The Postmaster General had no authority to impose new and unjust or unduly burdensome conditions. United States v. Stage Co., 199 U. S. 422;United States v. Bostwick, 94 U. S. 66.

The order is an attempt to change the express provisions of the law and thus change the basis of compensation without the consent of the railway company, the other party interested therein. It would be invalid. United States v. Symonds, 120 U. S. 46, 48, 49; United States v. Barnette, 165 U. S. 174, 178, 179; 2 Willoughby on the Constitution, 1326.

If there was no express agreement fixing the price for each car line, yet inasmuch as the Government in fact accepted and used 60-foot cars for the round trips, it was bound to pay the reasonable value thereof and the record shows the Government to have admitted such value of such car line to be the maximum fixed by Congress and the railway company was entitled to demand and receive that maximum unless and until it agreed to lease its cars for a less sum, which was not either claimed or shown.

A statutory maximum is the measure of the reasonable value of a cartier's service, the full extent of which it may lawfully demand. Manchester &c. Ry. Co. v. Brown, L. R. 8 App. Cas. 715; Great Western Ry. Co. v. McCarthy,

225 U, S.

Argument for the United States.

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L. R. 12 App. Cas. 218, 235; Wolcott v. Yeager, 11 Indiana, 84.

There is the presumption, in the absence of a showing to the contrary, that the maximum rate fixed by the legislature is the measure of a reasonable charge, where less has not been specially agreed upon. Beals v. Amador County, 35 California, 624; Archibald v. Thomas, 3 Cowen, 284, 289.

The Government must pay for the kind of car which is in fact furnished and used. Horton v. Cooley, 135 Massachusetts, 589.

There was no evidence nor any fact admitted which tended to show that the maximum charge fixed by Congress was not the measure of the reasonable value of the use of such cars in the absence of an express agreement to the contrary. Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564; Sidener v. Fetter, 19 Indiana, 310; Smithmeyer v. United States, 147 U. S. 343, 359, 360; The Albert Dumois, 177 U. S. 255.

Eastern Railroad Company v. United States, 20 Ct. Cl. 23, 43, distinguished. See Texas & Pacific Ry. Co. v. United States, 28 Ct. Cl. 379.

On quantum meruit, where the contract has been varied or departed from by the parties during performance, such contract is admissible as containing admission of the standard of value, etc. Reynolds v. Jourdan, 6 California, 109; Castagnino v. Balletta, 82 California, 250; Shirk v. Brookfield, 79 N. Y. Supp. 225; Boyd v. Vale, 82 N. Y. Supp. 932; Schulze v. Farrell, 126 N. Y. Supp. 678.

Mr. Joseph Stewart, with whom Mr. Assistant Attorney General John Q. Thompson, Mr. S. S. Ashbaugh and Mr. P. M. Cox were on the brief, for the United States:

The issues presented here are wholly issues of law arising upon the facts as found by the court below and admitted, if at all, in the pleadings, and no question can be

Argument for the United States.

225 U. S.

raised here, nor was such raised by assignment of error, as to the existence of this alleged fact which the court did not include in its findings and which is not admitted in the pleadings.

All argument submitted by plaintiff in error to show that the maximum rate fixed by the statute for pay for a full line of railway post-office cars is the value of the service rendered by plaintiff in error is irrelevant. The cases cited in support of plaintiff's contention may therefore be dismissed from consideration in this court.

The second main proposition of the plaintiff in error is that the half-line railway post office cars order complained of was made without authority, was evidently contrary to the law; and was oppressive and unreasonable. Morrill v. Jones, 106 U. S. 466; Bruhl v. Wilson, 123 Fed. Rep. 957, and Hoover v. Salling, 110 Fed. Rep. 43, are all cases where some department of the Government attempted by an order or direction to limit or curtail some right guaranteed by a law of Congress to the whole people, and are not in point.

The case at bar is clearly distinguished from this class of cases. Congress had provided that additional pay may be allowed for every line comprising a daily trip each way of railway post office cars at a rate not exceeding certain rates named in such statute for cars of certain lengths. This statute does not guarantee to railroad companies an absolute allowance for such cars nor an allowance of the maximum rates fixed by law in case such cars are authorized. As will be shown hereinafter, the law is merely permissive and fixes maximum rates, allowing the Postmaster General full power and discretion to fix minimum rates for such space as he may authorize, in accordance with the actual needs of the service.

In the conduct of the postal service the Post-Office Department is performing a governmental function. It has complete control of the conduct of the postal service

225 U.S.

Argument for the United States.

in the exercise of one of the sovereign powers of the people. A railroad company carrying the mails is not a common carrier with reference to such mails, but sustains a specific relation toward the United States. Bankers' Mut. Cas. Co. v. Minneapolis &c., Ry. Co. 117 Fed. Rep. 434; Texas & Pacific Ry. Co. v. United States, 28 Ct. Cl. 379; Minneapolis &c. Co. v. United States, 24 Cť. Cl. 350.

If the company did not choose to accept the terms of the Postmaster General it had the privilege to decline to perform the service, but it could not, by continuing to perform the service, force its own terms upon the United States. Rev. Stat., $$ 3997, 3999, were practically superseded by the act of March 3, 1873 (Rev. Stat., § 4002), and the amending statutes authorizing the readjustment of railroad mail pay on the basis of the average daily weights and upon an entirely new scale of prices.

The making of the order by the Postmaster General was not a violation of the contractual relations. Minneapolis &c. Ry. Co. v. United States, 24 Ct. Cl. 350.

The Distance Circular and proceedings thereon, including the railway company's reply, show that it was understood, and that it would be subject as in the past to all the postal laws and regulations which were then or might become applicable during the term of the service.

It will be entirely clear from the above that no contract rights of the plaintiff were violated by the order made by the Postmaster General.

The road in question was not a land grant aided railway, and was under no obligation to the Government to carry the mails or furnish the space in cars for railway postoffice service, but was free to carry the mails or to decline to carry them or to contract with the Government for the performance of such services or to decline to contract. Eastern Railroad Co. v. United States, 129 U. S. 391; Minneapolis, &c. Ry. Co. v. United States, 24 Ct. Cl. 350.

The Postmaster General had power to make the order

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complained of authorizing “half car lines” and to subsequently fix the pay for the railway post-office car service at a rate below the maximum provided by law for full lines of railway post-office cars. See statutes and regulations governing allowance of railway post-office car pay. Section 4004, Rev. Stat., as amended by act of March 2, 1907, 24 Stat. 1212; act of March 3, 1879, § 4, 20 Stat. 358; $ 1179, par. 3, Postal Laws and Regulations.

The Postmaster General has power to fix minimum rates. Rev. Stat., $$ 4002, 4004; Eastern Ry. Co. v. United States, 20 Ct. Cl. 23, affirmed, 129 U. S. 391; Minneapolis & St. Louis Railroad Co. v. United States, 24 Ct. Cl. 350; Texas & Pacific Ry. Co. v. United States, 28 Ct. Cl. 379.

The orders complained of were an offer which the company could have accepted or rejected. The failure to reject such offer and to refuse to perform the service, and the actual performance of service thereafter, although under objection but with notice that the Department would not pay for any greater space than that authorized, was in effect an acceptance.

The orders were offers of business, which were in effect accepted by furnishing the cars and performing the service. Chicago & Northwestern Ry. Co. v. United States, 15 Ct. Cl. 232; Eastern Railroad Co. v. United States, 20 Ct. Cl. 23; S. C., 129 U. S. 391; Minneapolis & St. Louis Ry. Co. v. United States, 24 Ct. CI. 350; Texas & Pacific Ry. Co. v. United States, 28 Ct. Cl. 379.

The Department cannot force a contract upon a railroad company situated as this company was. Chicago, Milwaukee & St. Paul Railway Co. v. United States, 198 U. S. 389. With more reason it must be said that a railroad company cannot force a contract upon the United States.

MR. JUSTICE LAMAR delivered the opinion of the court.

The Atchison, Topeka & Santa Fé Railroad had a fouryear contract with the Post-Office Department to carry

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