By way of summarizing, I conclude that the District is indebted to the United States on account of advancements to pay interest on the 3.65 bonds for the fiscal years 1877 and 1878 in the sum of $501,628.62, or, for the entire period antedating the passage of the organic act, in the sum of $586,067.221; but that, for the reasons hereinbefore stated, you have no power to reimburse the Treasury of the United States out of District revenues to the extent of said sums or either thereof. It is my opinion that power to adjust this matter is in Congress and no place else.

And aside from the stated reasons for these conclusions, applicable to the executive branch of the Government, there are apparent other reasons why the matter should be handled by Congress, where power lies to do what the circumstances of the case may seem to require, unlimited by the necessity of technical construction of the fragmentary and unsystematic legislation of the period involved. If there are reasons for assuming that the Congress which passed the act of 1878 did not intend to require an accounting as to antecedent transactions, there is now authority in Congress not found. elsewhere so to conclude and act. There every equitable consideration as well as the cold facts may properly be given their full weight and a conclusion reached which not only must be deemed authorized because with authority, but which can be justified because it is the deliberate conclusion of competent men authorized to act, inspired only by right motives, unhampered by necessity for technical construction, and desirous only of accomplishing right and justice.

CHARGE FOR SPECIAL TRAIN OF FREIGHT AND PASSENGERS.

When freight and passengers are moved together in a special train a separate minimum train charge for the passengers is not authorized in the absence of an express contract therefor.

Decision by Comptroller Downey, December 18, 1914:

The El Paso & Southwestern system applied November 7, 1914, for revision of the action of the Auditor for the War Department in disallowing $184.45 by settlement No. 19832, dated November 8,

1913.

The company claimed for passenger service per Government requests Nos. P-101772 and 101786, dated August 27, 1912, as follows:

The claim is based on through individual rate of $5 with a minimum of 50 fares, and an additional charge for 30 additional passengers from Columbus to Hachita at the individual rate therefor.

The auditor allowed for the service:

Request 101772, 4 men, Fort Bliss, Tex., to Columbus, N. Mex., at $3.20__ $12. 80 Request 101786, 79 men, Columbus, N. Mex., to Hachita, N. Mex., at $1.35

106. 65

119.45

The rate allowed is the individual rate Fort Bliss to Columbus and the party fare thence to Hachita.

Request 101772 shows transportation requested and furnished for W. H. Eckhorst, packmaster, and three others from Fort Bliss, Tex., to Hachita, N. Mex., and request 101786 shows transportation requested and furnished for 5 officers and 74 inlisted men from Columbus to Hachita, N. Mex.

It is developed by correspondence that five packers were furnished transportation with certain live stock and freight from Fort Bliss to Hachita, but that one was entitled to free transportation with live stock transported between the same points as per bill of lading 322, August 27, 1912. Transportation request No. 101772 is for the remaining four. Through error it appears that said five packers were included in the number designated on request 101786, for transportation Columbus to Hachita. The total number, 79, shown thereon, should therefore be reduced by 5 leaving 74 men for which transportation was furnished from Columbus to Hachita.

The further facts as they appear are as follows:

Maj. Rice and his command was stationed at Columbus, N. Mex., and it was desired to send them to Hachita, N. Mex. The property of Maj. Rice's command was also at Columbus, and it was to be shipped to Hachita. Pack train No. 4 and its property was stationed at Fort Bliss, and it was desired to send this train and its property to Hachita. Five packers were sent with this property, and as it included two cars live stock, one of the packers was entitled to free transportation. Bill of lading 322, August 27, 1912, was issued for the transportation of the property from Fort Bliss to Hachita. and $240.28 was paid for said service, per voucher 353-B, March, 1913, accounts of Capt. E. W. Tanner. Bill of lading 319, August 27, 1912, was issued for the transportation of the property of Maj. Rice's command from Columbus to Hachita, and $166.62 was paid for said service, per voucher 571-B, February, 1913, account of Capt. E. W. Tanner.

It further appears that it was desired to handle these two shipments of property and Maj. Rice's command together by a separate train, and Lieut. Buchanan ordered that two stock cars and one box car be sent to Fort Bliss and loaded, and that they be returned and

at El Paso pick up one coach (for the accommodation of Maj. Rice's command from Columbus to Hachita) and two stock cars and one flat car for loading at Columbus the property of Maj. Rice's command.

Lieut. Buchanan states that:

"Owing to the conditions existing at the time, these movements were rushed with all possible dispatch, and the only agreement with the railroad was a verbal one. At this late date it is impossible to recall all the incidents or conversation relating to this movement, but I am under the impression and believe that an understanding was made between myself and the representative of the railroad that the passenger service was to originate at Columbus. The packers were directed to accompany the animals, and if they made use of any passenger coaches it was only a personal arrangement with the conductor. It is certain that no coach was requested for their use. The entire movement was by special train service as this was required by the existing emergency, and it is believed that Maj. Rice's command and the pack train were handled by one train."

With reference to this service the agent of the El Paso & Southwestern at El Paso wired the superintendent as follows:

"Q. M., Fort Bliss, ordered special train El Paso to Fort Bliss. Want two stock cars and one box car loaded at Fort Bliss and brought to El Paso and pick up one coach, two stocks, and one flat for loading at Columbus. Destination of troops will be Hachita. Want to be handled special over both divisions. Order placed for trains with J. P. M., 7.50 a. m."

The company makes a lengthy argument contending that a special passenger train was requested by the Government from Fort Bliss to Hachita, that the company furnished same for the sole use of the Government, and that therefore the company is entitled to its special passenger-train charge between the two points without regard to the freight service rendered by the same train and paid for.

It is plainly apparent that much of the difficulty in the situation arises from the fact that there was no contract in writing for the service and that facts presented do not clearly establish just what was contemplated at the time, as to the character of the service to be rendered. A specific contract would not only have obviated the present difficulties, but it was required.

From the facts appearing it seems that the service in question was a special service, but there does not seem to be sufficient basis for a conclusion that it was a special passenger service with other service merely incident thereto. The object sought by the Government was the moving of the pack train from Fort Bliss as much as the moving of the troops with their equipment from Columbus. It was a combined freight and passenger movement, which it was intended to accomplish by special train, and both were accomplished by the same train.

There was no contract as to what was to be paid for the service, and the railroad company apparently seeks to construe it as a special passenger service from Fort Bliss with rates for such service applicable, including a minimum charge of 50 through fares, because there was in effect no rate for a special freight service. The argument can carry but little if any weight. The absence of a rate for a special freight service can hardly justify the elimination from consideration of the freight service rendered and the charges paid therefor, so that the service may be construed as something else than that which it was intended to be and actually was. If there was no rate in effect applicable to the service rendered that fact furnishes an additional reason why the payment to be made for the service should have been a matter of express contract.

If the freight movement from Fort Bliss had not figured in the transaction, and a special train service from El Paso had been ordered for the movement of the troops from Columbus, there would have appeared reason for the application of the minimum of 50 through passenger fares. The reason which always applies in justification of such charges would have been present. The expense of moving the train from El Paso must be compensated for. There would appear no reason, however, for the Government to order a special train from El Paso to move troops from Columbus. When a special train is desired it is usual to order the service required, leaving the assembling of the equipment to the railroad company, for which it is not customary for a charge to be made, the compensation therefor in the absence of agreement being included in the charge for the service from point of assembly to destination. But a part of the contemplated movement for which the train was ordered was from Fort Bliss and the railroad company's charge therefor, so far as the freight is concerned, has been paid to the amount of $240.28, and this amount for the service rendered, in addition to the four passenger fares to which it is also entitled, removes the reason for a minimum charge for that part of the service.

The only basis for settlement that can be recognized in this case is for the service actually rendered in accordance with the request, and the only allowance authorized therefor is the regular tariff rate which for the four passengers, Fort Bliss to Hachita, is the individual rate of $5 each; and for the 74 passengers, all traveling together as a party from Columbus to Hachita, is the party rate of $1.35 per capita, as follows:

TRANSPORTATION OF EXCESS BAGGAGE.

When excess baggage of Army officers changing station is shipped with the authorized allowance in one car on which the minimum carload rate applies, the weight of the excess baggage should be proportioned on the minimum carload weight and freight charges paid on same at the minimum carload rate without land-grant deduction.

Decision by Comptroller Downey, December 22, 1914:

The Atchison, Topeka & Santa Fe Railway Co. applied December 11, 1914, for a revision of the action of the Auditor for the War Department in disallowing, per settlement No. 22163, November 4, 1914, the sum of $14.32.

The company's claim was for $259.14, freight charges on shipment of 7,567 pounds household goods and 1,890 pounds professional books (total, 9,457 pounds), the property of Col. D. M. Appel, Medical Corps, United States Army, changing station, from Chicago, Ill., to San Francisco, Cal., bill of lading No. 1736, April 17, 1913.

The authorized allowance of baggage which Col. Appel was entitled to have shipped at Government expense on change of station was 7,200 pounds, which, deducted from 7,567 pounds of household goods shipped, leaves 367 pounds as excess baggage. Professional books are shipped at Government expense and not included as a part of the authorized allowance of baggage to be transported on change of station.

The claim of the railway company is based upon the minimum carload weight of 20,000 pounds for the authorized allowance of 7,200 pounds plus 1,890 pounds of professional books (total, 9,090 pounds), at the net carload rate of $1.2021 per hundredweight, $240.42; and on the 367 pounds of excess baggage it claims the lessthan-carload rate of $5.10 per hundredweight, $18.72-total charge for shipment, $259.14. The company contends that the excess baggage, although shipped on the same bill of lading and in the same car as the authorized allowance, should be considered as a separate and distinct shipment.

The auditor allowed the claim for $244.82, as follows:

Total weight of shipment, 9,457 pounds; as a carload, minimum weight, 20,000 pounds.

Government's proportion, 9,090 pounds, or 96.12 per cent=19,224 pounds, at $1.2021 per hundredweight_____

$231.09

Officer's proportion, 367 pounds, or 3.88 per cent=776 pounds, at $1.77 per hundredweight_.

13.73

Total allowed_____

244.82

The auditor's settlement is in accordance with decisions of this office authorizing the proportioning of the charge for excess baggage of officers shipped in one car with the authorized allowance on which