Engineer officers of the War Department, assigned to duty in
connection with the improvement of rivers and harbors or the work
of the California Debris Commission, are not within the meaning
of
Page 285 U. S. 241
the provisions of the land grant acts and the so-called
equalization agreements and joint military arrangements under which
the Government is entitled to deductions from the regular
commercial rates for the transportation of members of the military
forces or "troops of the United States." P.
285 U. S.
246.
72 Ct.Cls. 273 reversed.
Certiorari, 284 U.S. 611, to review a judgment of the Court of
Claims, insofar as it allowed deductions from charges for
transportation of engineer officers assigned to duty in connection
with rivers and harbors improvement and the work of the California
Debris Commission.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioner operates a railway system comprising certain
lines of railroad constructed with the aid of congressional grants
of public lands. During the years 1920-1923, both inclusive, the
company, upon transportation requests issued by the War Department,
the Navy Department, and the Marine Corps of the United States,
transported military prisoners and their guards; officers of the
reserve corps traveling to and from encampments under orders of the
Secretary of War; members of the nurse corps of the navy; engineer
officers of the War Department in duty in connection with river and
harbor works and the California Debris Commission; escorts
accompanying the remains of deceased soldiers; enlisted men
changing station or returning thereto; officers of the army
proceeding to their homes after date of their retirement, and
stranded enlisted men of the navy traveling
Page 285 U. S. 242
back to their proper stations. In settling petitioner's accounts
for transportation so furnished, or in adjusting those previously
settled, the United States, through its disbursing officers, made
or required petitioner to make certain deductions from the amounts
due at regular commercial fares, on the ground that the persons
transported were troops of the United States within the meaning of
the applicable land grant laws, appropriation acts, and land grant
equalization agreements. Payment on this basis was accepted under
protest. Suit was instituted in the Court of Claims to recover the
amounts deducted, the claim being that none of the persons with
respect to whose transportation deduction had been made came within
the purview of the statutes and agreements requiring the company to
carry troops of the United States at reduced fares. The Court of
Claims entered judgment for the petitioner on certain items of the
claim, but as to most of them found in favor of the United States.
A petition for certiorari was filed, and the writ was granted,
"limited to the question raised with respect to Engineer
officers of the War Department in performing duties in time of
peace in connection with rivers and harbors improvements and the
meetings of the California Debris Commission."
A portion of what is now petitioner's railroad system was
granted aid by the Act of July 27, 1866 (14 Stat. 292). The act
made the railroad a post route and military road, the charges of
which should be subject to such regulations a Congress might
impose. [
Footnote 1] With
respect
Page 285 U. S. 243
to the line in question, the army appropriation acts provide
that such railroad
"having claims against the United States for transportation of
troops and munitions of war and military supplies and property . .
. shall be paid out of the moneys appropriated by the foregoing
provisions only on the basis of such rate for the transportation of
such troops and munitions of war and military supplies and property
as the Secretary of War shall deem just and reasonable under the
foregoing provision, such rate not to exceed 50 percentum of the
compensation of such government transportation as shall at that
time be charged to and paid by private parties to any such company
for like and similar transportation, and the amount so fixed to be
paid shall be accepted as in full for all demands for such service.
[
Footnote 2]"
As respects another division of petitioner's system, the grant
of lands was under the Act of July 25, 1866 (14 Stat. 239, 240,
241), which provided:
"And said railroad shall be and remain a public highway for the
use of the government of the United States, free of all toll or
other charges upon the transportation of the property or troops of
the United States."
This clause was construed in
Lake Superior & Mississippi
R. Co. v. United States, 93 U. S. 442, as
conferring only the free use of the roadbed as a highway. Under
appropriate legislation following that decision, payment of
compensation has been made by the United States for transportation
of property and troops at 50 percent of that charged to private
parties.
See United States v. Union Pacific R. Co.,
249 U. S. 354.
Page 285 U. S. 244
The Government and certain railroads have entered into so-called
equalization agreements and joint arrangements for military
transportation which provide for deductions additional to the 50
percent required by the statutes. The petitioner is a party to
these agreements, which have been construed generally as applying
to charges for transportation of the same classes of persons of
whom the land grant rates would be applicable. Both the petitioner
and the Court of Claims have so treated these agreements and
arrangements, and our decision under the statutes may be taken to
apply to deductions under these contracts.
This Court had occasion in the Union
Pacific case,
supra, to pass upon the meaning and scope of the phrase
"troops of the United States" as used in the land grant legislation
and in the agreements. What was there said is apposite to
expenditures under appropriation acts which use the same
phraseology and apply to transportation over petitioner's railroad.
The opinion in that case demonstrates that the word "troops" was
intentionally used in contradistinction to the words any persons in
the service of the United States, or their equivalent, and holds
that the word "troops" had at the time of the passage of the land
grant acts, and ever since has had, an established meaning --
namely, "soldiers collectively a body of soldiers."
Thus, the test is whether the person to be transported is one of
such a collective body of soldiers. The reduced rate is applicable
to a person so described, although he may not be traveling as part
of a detachment or moving body of men.
Illinois Central R. Co.
v. United States, 62 Ct.Cls. 61;
Chicago, Rock Island
& Pacific Ry. Co. v. United States, 58 Ct.Cls. 33. In the
Union Pacific case, it was pointed out that, although
certain persons were properly characterized as members of the army
and as having official relation thereto, they could not, at the
time of their transportation, be classified as part of the
Page 285 U. S. 245
troops of the United States, as, for example, a furloughed
soldier returning to his station or retired soldiers en route to
their homes after retirement.
The narrow question presented for decision is whether engineer
officers cease to be members of the military forces or "troops of
the United States" when they are assigned to duty in connection
with the improvement of rivers and harbors or the work of the
California Debris Commission.
While, as is argued by the United States, river and harbor
improvement has, in one aspect, a bearing upon the military defense
of the United States, obviously the principal purpose of this work
is the promotion of commerce and transportation by maintaining and
deepening channels, and constructing dikes, jetties, and other
works which effect the improvement of navigation generally.
The California Debris Commission was created by the Act of March
1, 1893 (27 Stat. 507), which authorized the appointment of a
commission from officers of the corps of engineers of the United
States army, whose duty was to mature and adopt a plan or plans to
improve the navigability of the Sacramento and San Joaquin Rivers
in California, deepen their channels, and protect their banks, with
a view of preventing encroachment and damage from debris resulting
from mining operations, natural erosion, or other causes, and
restoring as far as practicable the navigability of the rivers to
the condition existing in 1860. The commission was to permit mining
by hydraulic processes, provided this could be done without injury
to the navigability of the rivers or to the lands adjacent thereto.
Quite evidently this work is of a nonmilitary nature, and in the
interest of commerce and navigation.
Conceding that engineer officers of the United States army
perform a true military function when engaged in work on the
military defences of the United States, and, when so engaged, form
a part of the nation's troops, we
Page 285 U. S. 246
are of opinion that their activity in connection with rivers and
harbors work and the California Debris Commission is nonmilitary in
character, and falls within the same category as that of many other
employees and officials of the War Department, the nature of whose
service excludes them from classification as part of the "troops of
the United States."
Congress has recognized that such service by engineer officers
is nonmilitary. For example, in the Army Appropriation Act for
1930, approved February 28, 1929 (45 Stat. 1349, 1374, 1379), Title
I deals with military activities and expenses of the War Department
incident thereto. Title II has to do with nonmilitary activities of
the War Department, and, under the subtitle "Corps of Engineers,"
makes appropriation for defraying the expenses of the California
Debris Commission, and also for the rivers and harbors improvement
work of the United States to be carried on under the control and
supervision of the Chief of Engineers of the War Department. The
Secretary of War, in his annual reports, under the caption "Civil
Activities of the Corps of Engineers," mentions rivers and harbors
work and that of the California Debris Commission. [
Footnote 3]
The Court of Claims held the view that, as respects engineer
officers employed in the capacities mentioned, the government was
entitled to the deduction of 50 percent under the terms of the
land-grant acts and appropriations pursuant thereto and other
deductions under the equalization agreement and joint military
arrangements. For the reasons given, we are of the contrary
opinion, and accordingly reverse the judgment of the Court of
Claims and remand the cause for further proceedings in conformity
herewith.
Reversed.
[
Footnote 1]
Act of July 27, 1866, 14 Stat. 292, § 11.
"
And be it further enacted, That said Atlantic and
Pacific Railroad, or any part thereof, shall be a post route and
military road, subject to the use of the United States for postal,
military, naval, and all other government service, and also subject
to such regulations as Congress may impose restricting the charges
for such government transportation."
Section 18 of the same act made the same provision respecting
the Southern Pacific Railroad, now a part of petitioner's
system.
[
Footnote 2]
See the Army Appropriation Act for the year ending June
30, 1921, approved June 5, 1920 (41 Stat. 948, 959, 960). The act
contains the following proviso:
"That nothing in the preceding provisos shall be construed to
prevent the accounting officers of the Government from making full
payment to land-grant railroads for transportation of property or
persons where the courts of the United States have held that such
property or persons do not come within the scope of the deductions
provided for in the land-grant Acts. . . ."
[
Footnote 3]
Typical reports are that for 1928, p. 25
et seq., and
that for 1930, pp. 9, 16, 17.