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for service along the line of the bond-aided Union Pacific Railway, from Grand Island to Omaha, Nebr., and respectfully request your decision as to whether under the law it can be properly paid by a disbursing officer of the Quartermaster's Department, as claimed by the manager of the Western Union Telegraph Company in the accompanying letter of the 5th instant.

From the papers submitted it appears that tbe telegram in question was filed with the Western Union Telegraph Com. pany at Grand Island, Nebr., with directions to transmit the same to Omaha, Nebr. The service to be rendered in this case was along the line of the bond-aided Union Pacific Rail. way, which maintains a telegraph line between the two places, and no reason is seen why the railway company could not and should not have been called upon to perform the service, thus giving the United States the benefit of applying the earnings to the reduction of the debt due from the company to the Government.

In considering this case notice must be taken of the fact that the Western Union Telegraph Company was, at that time, using and operating the lines of the Union Pacific Railway Company under a lease from the latter to the former company.

It does not appear that there was any direction to the company with whom the message was filed to transmit the same over the lines owned by the railway company, but operated by the Western Union Company under the lease above mentioned. In the absence of such direction the right of the Western Union Telegraph Company to pay for the service must depend upon the question of fact as to which of the two lines was used in transmitting the message. In the case of United States v. Western Union Telegraph Company and Union Pacific Railway Company (160 U.S., 53) the conclusion reached by the Supreme Court was that in cases where there were directions to use the line constructed by the railroad company, or there was proof that said line was actually used, the United States have the right to retain the earnings to be credited to the bond-aided railroad company; but in cases where no directions were given as to which line should be used, and no proof that the line owned by the railroad company was actually used, the company first receiving the messages is entitled to payment.

In the present case it appears that no directions were given to transmit the message over the line owned by the railroad company, yet if there be evidence that said line was actually used settlement should be made in the name of the railroad company. If there be no evidence to show which line was actually used, and the proper officer will so certify on the voucher, payment may be made to the Western Union Telegraph Company.

Attention is invited to paragraphs 2, 3, and 4 of the inclosed circular, dated February 17, 1896. (See Appendix.] Respectfully, yours,


Assistant Comptroller. Maj. D. D. WHEELER,

United States Army, Omaha, Nebr.


The United States have the right to claim such reduced rates for trans

portation as the laws applying to the different railroads provide, and the fact that the Government requires reimbursement of the cost of the transportation furnished in certain cases, as of deserters returned to their regiments, and soldiers transferred from one command to another at their own request, does not furnish any valid ground of objection to the reduced rates by the railroad companies, which can not be permitted to question the purpose for which the transportation is required, their rights and obligations being measured by the

laws applying to them in relation to governmental transportation. A land-grant railroad company is entitled only to the usual charges to the

Government for transporting soldiers on Government orders, notwithstanding such soldiers may be required to reimburse the Government for such transportation.


February 26, 1896. SIR: I have received your letter of the 20th instant submitting the following decision for my approval, disapproval, or modification:

"I have the honor to transmit herewith the papers in the claim of the Southern Pacific Company, No. 125202, etc., and to report to you, in compliance with the requirements of section 8, act of July 31, 1894, the following decision modifying an existing construction of statutes.

"The above-mentioned company presents bills for the transportation of deserters and their escorts; for the transportation of soldiers returning from furlough, and soldiers transferred

from one organization to another at their own request, and protests against any deduction on account of land grant on the ground that the soldier is chargeable with the cost of such transportation, and it is not at the expense of the Government.

“An examination of claims heretofore settled shows that the uniform practice of the accounting officers has been to deduct 50 per cent from the company's charges for any transportation over the land-grant roads, which is payable from the Army appropriation acts, while for transportation over the free road from Portland to Roseville, the company's charge has been allowed.

"As the transportation under consideration appears to be «Government transportation, and as section 5, act of July 25, 1866, is explicit on the point, I am of opinion that the practice of allowing the company's charge over the free road should be changed, and said company should be required to carry at its own cost over said road all persons included in the terms troops' as heretofore defined by the accounting officers.

“The claim of the Southern Pacific Company No. 125202, etc., bas been audited in accordance with this decision (see statement of account herewith), and I find that there is due said company the sum of ninety-six dollars and eighty-seven cents under appropriations as follows: Pay, etc., of the Army, 1895..... Transportation of the Army and its supplies, 18950. ...

..................... $2.50

. 26. 76 Transportation of the Army and its supplies, 1896........ ...... 67.61

“The items affected by this decision will be suspended and payment thereof withheld until you shall approve, disapprove, or modify such decision, and certify your action to me.”

The attorney for the Southern Pacific Company claims: 66 There has been no ruling of the Treasury Department, by virtue of which deductions in these cases are authorized and they are clearly improper. The Government receives the cost of the service iu each case from the soldiers for the purpose of paying for their transportation. It is therefore a fund held by them in trust, for that purpose, and it is the duty of the accounting officers to see that that trust is performed. The fact that certain railroads received grants of land from the Government does not, in any manner, defeat the responsibility of the Government to turn the amount collected by them for transportation services over to the company. The laws especially require that the soldiers shall pay for their transportation when transfers are performed at their individual requests, and, also, when they are apprehended and transported to a military post.”

The contention of the company is that in cases where the Government is reimbursed for the outlay, it has no right to take advantage of the relations existing between it and the railroad companies growing out of the land-grant aid extended to said companies, but should pay the full tariff rates charged private travelers. This contention, carried to its logical conclusion, in this class of cases, if, as contended, the Government is a trustee, would mean that no payment should be made except where the United States is able to secure reimbursement. Such a conclusion can not be accepted.

When a "transportation order” has been issued by a proper officer of the United States, it must be presumed that the Government has an interest in procuring the transportation, and is benefited thereby, and it is legally bound to pay for the same according to existing law, whether it is reimbursed for the outlay or not. The United States have the right to claim such reduced or free transportation as the laws applying to the different railroad companies afford, and said companies can not be permitted to question the purpose for which the transportation is required. They may, however, inquire into the character of the service performed so far as is necessary to enable them to properly present their claim for settlement.

There can be no doubt that it is for a governmental purpose that a deserter is returned to his regiment, that a soldier is transferred from one command to another, even when it is done at the soldier's request, and that other soldiers are returned from furlough, for these men are all the time - troops," within the meaning of these laws. The policy of the Government in requiring reimbursement of the cost of transportation furnished in certain cases, either as punishment for an offense, or as a condition attached to the extension of favors to its employees, is a question with which the railroad companies have nothing to do. The rights and obligations of the companies are measured by the service required and performed for the Government and the several laws applying to them in relation to governmental transportation.

The question of the amount to be recovered as reimbursement from the persons transported not being before the office at this time, no opinion is expressed thereon. The decision of the Auditor is approved. Respectfully, yours,


Assistant Comptroller. The AUDITOR FOR THE WAR DEPARTMENT.

11268—VOL 2- 27



TRICT OF INDIANA. A clerk who has paid into the Treasury the costs taxed against a defend

ant in a case where the Government is the plaintiff can not demand
repayment from the United States of the sum taxed as his fees. The
amount which he is entitled to receive for services rendered by him
to the United States is payable only upon his presenting an itemized
account under section 856, Revised Statutes.


February 26, 1896. Mr. Noble C, Butler, clerk of the United States district court for the district of Indiana, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending June 30, 1895. The Auditor first suspended and subsequently disallowed all fees in certain cases in which the United States were plaintiff because of the refusal of the clerk to itemize the fees in these particular cases, as is required in all cases where the fees are paid by the Government. A similar demand had been made of the clerk by the Department of Justice in the administrative examination of his account. The clerk refused to comply with the demand of the Department of Justice and of the Auditor upon the ground that the fees in these particular cases had been taxed by the court against the defendants and paid by them, and had been paid into the Treasury by the clerk, and therefore that he was entitled to have them repaid to him whether rightfully or wrongfully collected from the defendants, and that not being paid by the Government he was not required to present an itemized account of the fees which had been thus taxed by the court as costs. He relies upon the case of United States v. Cigars, etc. (2 Fed. Rep., 494), as holding that he is authorized to retain from the costs in each particular case the fees to which he is entitled for the services rendered by him in each case, and that he is not required to pay into the Treasury such costs.

Section 856, Revised Statutes, provides:

“ The fees of district attorneys, clerks, inarshals, and commissioners, in cases where the United States are liable to pay the same, shall be paid on settling their accounts at the Treasury.”

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