by the Quartermaster General (at whose suggestion the above question was proposed) as indicating an intention on the part of Congress to permit accounts to be paid under that provision by disbursing officers of the quartermaster's department, as other accounts of that department are ordinarily paid. Formerly accounts of land-grant railroads were paid by these officers at the rates charged the public for similar services, subject to a deduction of 33% per centum, agreeably to a regulation of the War Department. But by the army appropriation act of March 3, 1875 (18 Stat. 453-4), it was declared that no money should thereafter be paid for the transportation of property or troops of the United States over any railroad which in whole or in part was constructed by the aid of a grant of public land on the condition that such railroad should be a public highway for the use of the government, free from toll or other charge; but that nothing therein contained should be construed as preventing any such railroad from bringing a suit in the Court of Claims for the charges for such transportation and recovering for the same, if found entitled thereto by virtue of the laws in force prior to the passage of that act; and to either party to the suit a right of appeal to the Supreme Court was given. Subsequently suits were brought in the Court of Claims by certain railroad companies owning land-grant roads, to recover compensation from the government for transportation performed for it over such roads. These suits were carried to the Supreme Court on appeal, and it was there held that the railroad companies were entitled to compensation "for all transportation performed by them respectively of troops and property of the government (excepting the mails), subject to a fair deduction for the use of their respective railroads." (See 93 U. S. Rep. 442). Afterwards, Congress, by the act of March 3, 1879, cited above, made an appropriation for the payment of arrears of army transportation due land-grant railroads, to be adjusted by the proper accounting officers in accordance with the decision of the Supreme Court, but in no event was more than fifty per cent. of the full amount allowed by the Quartermaster General to be paid until a decision of the Court of Claims was had in each case. This provision plainly contemplated that, before making any payment on a land-grant railroad account for arrears of army transportation, the account should be adjusted by the accounting officers of the Treasury; and the practice thereunder accorded with this view. In thus providing that such account should be adjusted by those officers prior to its payment, instead of letting it take the usual course (i. e. of being settled and paid by a quartermaster, without previous action thereon by them), Congress doubtless regarded it more in the light of a claim than an ordinary transportation account-as a claim which required, for the proper adjustment thereot, not only a computation of the value of the services according to the tariff rates applicable thereto, but a determination of what is a fair deduction for the use of the road (to which the government was entitled free of cost), and deemed it expedient to commit such determination to the accounting officers. The other acts herein before cited, which were subsequently passed, down to and including the act of February 9, 1887, made similar provisions for the adjustment and payment of accounts of land-grant railroads for army transportation. Two of these acts (viz: Acts of June 30, 1882, and Aug. 5, 1882) contain the following proviso: "That any such land-grant roads as shall file with the Secretary of the Treasury their written acceptance of this provision shall hereafter be paid for like services as herein provided;" etc. By this proviso the mode prescribed in the two acts referred to for the payment of such accounts (which necessitated the adjustment of the accounts by the accounting officers previous to payment), was extended to future claims for like services where the required written acceptance on the part of the roads is filed with the Secretary of the Treasury. Recurring to the provision in the act of September 22, 1888, the inquiry now arises, whether the mode prescribed as above must be followed in the adjustment and payment of accounts of land-grant roads thereunder, as a legal requirement. From an examination of that provision in connection with the proviso last above mentioned, I think this inquiry should be answered in the negative, and for the following reasons: Consistently with the terms of the provision, an adjustment and payment of such accounts by the disbursing officers of the quartermaster's department, as other transportation accounts of that department are usually paid, would seem to be admissible, subject to the restrictions contained in the provision itself, namely, that the compensation is computed upon the basis of the tariff or lower special rates for like transportation performed for the public at large, that not more than fifty per centum of the amount so ascertained is paid, and that this is accepted in full for all demands for the services. The accounts are to be adjusted in accordance with the decisions of the Supreme Court. But this is not by the provision required to be done, as theretofore, by the accounting officers. The "fair deduction for the use" of the roads, called for by the decision of that Court already adverted to, having become in practice (as I am informed) uniformly fixed at a deduction of fifty per centum from the value of the services performed, when computed at the rates paid by the public at large for like services, the circumstance which formerly made it expedient to have the accounts adjusted by the accounting officers of the Treasury previous to payment (viz: the determination in each case of what is a "fair deduction for the use" of the road) no longer exists; and it was probably in consideration of this that the words "by the accounting officers" were, in this provision, omitted in the clause relating to the adjustment of the ac counts. Furthermore, the compensation for army transportation, computed upon the basis of the rates described in the provision in the act of 1888, may be paid thereunder to the extent of fifty per centum of the amount thus ascertained, if this is accepted as in full for all demands for such service, although no writ ten acceptance of the provision in the acts of June 30 and August 5, 1882, as required by the proviso in those acts, quoted above, may have been filed with the Secretary of the Treasury. To bring an account within the operation of that proviso as to payment, the filing of such written acceptance with the Secretary is essential; whereas, under the provision in the act of 1888, an acceptance in full for all demands," etc., would be sufficient to authorize a payment, if expressed in a receipt given therefor to a disbursing officer of the Army. Upon the whole, I reach the conclusion that the payment of accounts of land-grant roads for army transportation under the act of September 22, 1888, is not controlled by the proviso referred to, but is governed by the provisions of that act alone; and I am of the opinion that, under its provisions, such accounts can be lawfully paid by a quartermaster without previous action thereon by the accounting officers of the Treasury. GENERAL ORDERS, No. 41. HEADQUARTERS OF THE ARMY, Washington, April 24, 1889. By direction of the Secretary of War paragraph 2571 of the Regu lations, as amended by General Orders, Nos. 24, of 1885, and 53, of 1888, from this office, is further amended to read as follows: 2571. Arms, ordnance stores, quartermaster's stores, and camp equipage issued to the several States and Territories under the law for arming and equipping the militia (24 Statutes, 401) will be turned over to the Quartermaster's Department for transportation to the point within the State or Territory designated by the governor thereof; the cost of the transportation, on and after July 1, 1889, being payable from the appropriation for Army transportation. Officers of the Quartermaster's Department are instructed to use separate bills of lading in forwarding property under the provisions of this law, and to state and pay the accounts for such transportation upon forms of the Quartermaster's Department applicable, as in the case of transportation of Army supplies. BY COMMAND OF MAJOR GENERAL SCHOFIELD: OFFICIAL: R. C. DRUM, Adjutant General. Assistant Adjutant General. |