462), the court said, that the right of the United States to retain compensation for services rendered by such company does not exist, because said company "received no such [subsidy] bonds, and that neither the company, nor its railroad property, is liable in any way for the payment of any debt incurred for such bonds," although such company became, and was, by law "entitled to all the benefits, and subject to all the conditions and restrictions, of" the act of July 2, 1864, except as to subsidy bonds. These cases were decided under the acts of July 1, 1862, and July 2, 1864, above cited, and rest in part on expressions found in said acts, which show that Congress, in giving to the United States a lien, had in view only the roads aided by subsidy bonds, and, in giving to the United States a right to five per cent. of net earnings and to retain one-half of the compensation for services for the United States, had reference only to earnings and services on the aided portions of said roads. These were the roads as to which Congress was legislating, to which land and bonds were given, and from which alone earnings were to be paid and compensation retained. And, on general principles, the rights reserved to the United States by these acts apply only to the companies created or recognized and to roads authorized and aided thereby. This results by analogy from the principle, "that statutes referring to or affecting persons, places, and things, are [generally] limited in their application to persons, places, and things as they existed for were provided for] at the time the statute was passed." (Hall r. The State of Ohio, 20 Ohio, 13; United States r. Paul, 6 Pet., 141; Kendall v. United States, 12 Id., 525; The City of Mobile r. Eslava, 16 Id., 234; The City of Mobile r. Hallett, 16 Id., 261; Union Pacific Railroad Co. v. United States, 104 U. S., 662; Union Pacific Railway Co. v. United States, 16 Ct. Cl., 358.) If the rights of the United States as to the compensation for mail-service now in question are to be decided on the acts and decisions referred to, it is clear that the claimant must be paid. For, certainly, if, as decided by the Supreme Court, the United States is not entitled to payment of 5 per centum of the net earnings made on a non-land-grant and non-subsidized road "owned" by a land-grant and subsidized railway company, and is not entitled to retain one-half, or any part, of the compensation for services for the United States on such non land-grant and non-subsidized road, then it cannot retain such compensation earned by an independent railway company on a road merely "controlled," as in this case, but not owned, by a land grant and subsidized company. The greater includes the less. Omne majus continet in se minus (Broom, Leg. Max., 174).

The Supreme Court has thus settled principles which deny the right of the United States to retain the compensation now in question, unless such right has been given by some act not passed upon, and not affecting the question decided, by the court. There are three acts which do not appear to have been so passed upon in the cases cited, to wit, the

act of March 3, 1873 (17 Stat., 508, sec. 2), now sections 5260 and 5261 of the Revised Statutes; the act of May 7, 1878 (20 Stat., 58), and the act of March 3, 1879 (20 Stat., 420).

These acts, however, have either directly, or in principle, received a judicial construction which leaves nothing open for any opinion of the Comptroller. It only remains for him to state and apply the principle settled.

The act of March 3, 1873, as carried into section 5260 of the Revised Statutes, directs the Secretary of the Treasury:

"To withhold all payments to any railroad company and its assigns, on account of freights or transportation over their respective roads of any kind, to the amount of payments made by the United States for interest upon bonds of the United States issued to any such company, and which shall not have been re-imbursed, together with the five per centum of net earnings due and unapplied, as provided by law."

This is to be read especially in connection with section 5261 of the Revised Statutes, taken from the same act, as follows:

"SEC. 5261. Any such company may bring suit in the Court of Claims to recover the price of such freight and transportation, and in such suit the right of such company to recover the same upon the law and the facts of the case shall be determined, and also the rights of the United States upon the merits of all the points presented by it in answer thereto by them; and either party to such suit may appeal to the Supreme Court; and both said courts shall give such cause or causes precedence of all other business."

1. The United States, according to the records in the Bureau of the Commissioner of Railroads (act of June 19, 1878, 20 Stat., 169; act of March 3, 1881, 21 Stat., 409), has made large payments, which have not been re-imbursed, for interest upon the subsidy bonds of the United States issued to the Union Pacific Railroad Company, now the Union Pacific Railway Company.* It is clear, upon the authority of the courts, that section 5260 of the Revised Statutes gives no right to withhold the compensation in question, or any compensation, from the Utah and Northern Railway Company; and for several reasons:

*

1. This section only authorizes payments to be withheld from "any railroad company and its assigns, to the amount of payments made by the United States for interest upon [subsidy] bonds of the United States issued to any such company." The right to withhold payment is thus expressly limited to companies to which subsidy bonds were issued, and none were issued to the Utah and Northern Railway Company.

2. The right to withhold compensation can only exist by an express, or clearly implied, grant of authority. When compensation is earned, it should, in justice, reason, and law, be paid, unless there be clear authority of law to withhold it. And Congress never has taken, and, under the Constitution never can take, away, without the consent of the claim

See Annual Report of the Commissioner of Railroads for the year ended June 30, 1882, page 10.

ant, the right to payment of compensation lawfully earned, except in those cases in which the power to do so has for some legitimate purpose been previously reserved, or unless previous authority has been reserved to provide by law for withholding such payment. (Sinking-Fund Cases, 99 C. S., 700; Union Pacific Railroad Co. v. United States, 104 U. S., 662; Chicago, Milwaukee, and St. Paul Railway Co. r. United States, Id., 687.)

No such power or authority has been reserved as to the compensation of claimant. It has no liability to the United States to be paid by any reservation, and, as said in United States v. Denver Pacific Railway Co. (99 U. S., 462), "consequently there is no room for the application of the right of retention in this case." And see Pacific Railroad Cases, 16 Ct. Cl., 360.

3. And, in addition to this, the act of March 3, 1873, as carried into the Revised Statutes, section 5260, directs the Secretary of the Treasury "to withhold all payments" from any such [subsidized] company

as provided by law." The "law" referred to, as determined by the Supreme Court, is found solely in the acts of July 1, 1862, and July 2, 1861. This was decided at October term, 1875, in the United States v. Union Pacific Railroad Co. (91 U. S. 78; s. c., 11 Ct. Cl. 1). The Secretary of the Treasury had withheld all payments on account of transportation, claiming the right to do so under the act of March 3, 1873. The suit was brought under said act to recover one-half of the sum so withheld, the company conceding the right of the Secretary to withhold one-half under the charter-contract in the act of July 2, 1864 (13 Stat., 359, sec. 5), but denying his right to withhold all under the act of March 3. 1873. It was said in the argument in this case-"The purpose of the act of 1873 [Rev. Stat., 5260, 5261] was not to repeal the charter [acts of July 1, 1862, and July 2, 1864], or any part of it, since it [the act of March 3, 1873] authorized the suit to be brought by the company against the United States to recover the price of freight and transportation due under existing laws [the acts of July 1, 1862, and July 2, 1864]. If Congress meant to repeal the provision for the payment of one-half of the transportation [in the act of July 2, 1864], it would have been an empty mockery to authorize a suit to recover for that very transportation." (United States v. Union Pacific Railroad Co., 91 U. S., 78.) And the court said as to the act of March 3, 1873, now sections 5260 and 5261 of the Revised Statutes:

"It is contended that this act repeals that portion of the charter of the company which contains the provisions we have discussed [as to retaining only one-half of the compensation]; but, manifestly, its purpose was very different. Although it directs the Secretary of the Treasury to withhold all payments to the companies on account of freights and transportation, it at the same time authorizes any company thus affected to bring suit in the Court of Claims for 'such freight and transportation'; and in such suit 'the right of such company to recover the same upon the law and the facts shall be determined, and also the rights of the

United States upon the merits of all the points presented by it in answer thereto by them.' This means nothing more or less than the remission to the judicial tribunals of the question, whether this company, and others similarly situated, have the right to recover from the Government one-half of what they earned by transportation; and this question is to be determined upon its merits.

"The merits of such a question are determined when the effect of the charter fact of July 2, 1864] is ascertained and declared. It is hardly necessary to say that it would have been idle to authorize a suit, had Congress intended to repeal the provision on which alone it could be maintained." (United States v. Union Pacific Railroad Co., 91 U. S., 91.)

And judgment was rendered in favor of the company for the amount claimed. Thus, it is settled by the highest authority, that section 5260 of the Revised Statutes does not authorize the Secretary of the Treas ury to withhold all compensation from any company, but only one-half from the bond-subsidized companies. In fact all that part of said section 5260, which directs the Secretary "to withhold all payments," is thus declared inoperative. It is a matter of history, that, when the act of March 3, 1873, was passed, Congress was evidently of the opinion that the railroad companies were bound by the acts of July 1, 1862, and July 2, 1864, or might by law be required to re-imburse the United States for all interest paid by it on subsidy bonds as such interest fell due, and before the maturity of the bonds. This opinion was held by the Attorney-General. (Akerman, Dec. 15, 1870, 13 Op. Att. Gen.,-361.)

The act of March 3, 1873, was passed, not to make new law, but to secure a judicial settlement of the rights of the United States and of the railroad companies. Congress, by this act, as the courts have decided, simply intended to authorize the Secretary of the Treasury to retain all compensation, if the courts should decide that, by the terms of the chartercontract in the acts of July 1, 1862, and July 2, 1864, all the interest as paid by the United States, was to be re-imbursed to it before the ma turity of the subsidy bonds.

In other words, section 5260 of the Revised Statutes was a direction to the Secretary of the Treasury to retain all compensation, if it should be determined by the court that, under the charter-contract in the acts of July 1, 1862, and July 2, 1864, the United States had a right to be reimbursed so soon as it made payment of interest on subsidy bonds, and before their maturity. But the Supreme Court, at October term, 1875 (United States v. Union Pacific Railroad Co., 91 U. S., 72), decided, that the United States was not entitled to be so re-imbursed by the railroad companies until the maturity of the subsidy bonds, except as re imbursed by one-half of the compensation for services rendered for the Government and by five per cent. of the net earnings. This decision overruled the opinion of Attorney-General Akerman of December 15, 1870 (13 Op. Att.-Gen., 361), and had the effect to settle the question, that, under the act of March 3, 1873 (Rev. Stat., 5260), the Secretary of the Treasury could not retain all compensation. Thus it was determined

that the charter-contract was not as Congress, by the act of March 3, 1873, claimed it to be, and hence, that this act was inoperative so far as it purported to give a right to retain all compensation for services for the United States earned on the roads authorized by the acts of July 1, 1862, and July 2, 1864. Accordingly, the Supreme Court in principle decided at October term, 1881, in Union Pacific Railroad Co. v. United States (104 U. S., 662), that only one-half of the compensation for transportation could be retained; and this was in a case to which the act of March 3, 1873, clearly applied, if it was to be regarded as operative as to the bond-subsidized roads covered by the acts of July 1, 1862 (12 Stat., 489), and July 2, 1864 (13 Stat., 356). The principle settled by this case was, that the provisions of the acts of July 1, 1862, and July 2, 1864, as to compensation for transportation services rendered for the Government "constitute a contract between the United States and the" companies, which cannot be changed by a subsequent statute, and so is not affected by section 5260 of the Revised Statutes. This decision at October term, 1881, is later than the opinions of AttorneyGeneral Williams, of May 8, 1873, and February 24, 1874 (14 Op. Att. Gen., 233, 375), and than the opinion of Attorney-General Devens of June 11, 1880 (16 Op. Att.-Gen., 516; 1 Lawrence, Compt., Dec. 2d, ed.; App., Ch. I, 439), and overrules them so far as the principles therein stated apply to said bond subsidized roads. (See note, 13 Op. Att.-Gen., 369). The opinion of Attorney-General Devens of June 11, 1880, makes no reference to the above-named decisions of the Supreme Court at October term, 1875. Certainly the opinions of two Attorneys-General are entitled to great weight, but these and the opinions of Comptrollers must yield to those of the Supreme Court.

The principle settled by the Supreme Court, which is, that the right to retain compensation is to be determined by "the effect of the charter" contract, as prescribed in the acts of July 1, 1862, and July 2, 1864, equally denies the right of the United States to retain compensation from an independent company like the claimant in this case. This charter-contract does not extend to an independent company. And the Supreme Court has decided in principle that it does not even extend to a portion of the road, owned by a bond subsidized company, but not aided by bonds. (United States v. Kansas Pacific Railway Co., 99 U. S., 455.)

The point decided in this case is, that "the bonds granted by the United States to the Kansas Pacific Railway Company are not a lien on, nor is the company liable for 5 per cent. of the net earnings of, that portion of its road" not aided by subsidy bonds. In other words, the United States had no right to the payment of 5 per centum of the net earnings of the unaided portion of the road. The principle of this decision applies as well to the compensation for transportation as to the 51 er centum of net earnings. The rights, to retain compensation, and to payment of 5 per centum of the net earnings, are given in the same section of the act of July 1, 1862 (12 Stat., 493, sec. 6), and for the same purpose—to