United States v. Northern Pac. Ry. Co.

POLLOCK, District Judge

(dissenting). I regret my inability to agree with the majority opinion of this court in this case. In *661so far as the present ease is concerned, the subject-matter, measured in dollars and cents, is most inconsequential. However, the principles involved are of large concern.

The question at issue is this: By what rule is a railway company, aided by a grant of the public domain in its construction, to determine the legal deduction to1 be made the government for services performed by the road payable by the government? The facts in this case are stipulated by the parties; and are sufficiently stated and found in the able opinion of the trial court and majority opinion of this court, and need no further statement.

"When it is considered the land grant made by the government in this case in aid of the construction of the original line of railway from the shores of Lake Superior to the city of Portland, Ore., and Puget Sound, was in no sense of the word whatever a mere gratuity to the railroad, but was more a consideration desired by the government itself than hy the railway company undertaking the vast and expansive project, and that when the proposal for this project was declared hy the Congress in the Act of July 2, 1864, the terms of which act were accepted by the railway company, the work performed by that company and accepted by the Ghief Executive of the nation as having been done and completed, it becomes entirely clear we are in ibis case dealing with the rights of parties fixed and concluded by the express terms of a definite written contract that must he settled and enforced asi written between them when made; that we are not dealing in any haphazard guesses made by either department officials or representatives of the road not charged with the duty of construing this contract. That the above-stated conditions do obtain are to my mind made entirely clear by the decision of the Supremo Court in United States, v. Northern Pacific Railway Co., 256 U. S. 51, 41 S. Ct. 439, 65 L. Ed. 825, wherein Mr. Justice Van Devanter, entirely familiar with existing conditions, in delivering the opinion for the court, stated the facts as follows:

“The purpose of the granting aet and resolution was to bring about the construction and operation of a line of railroad extending from Lake Superior to Puget Sound and Portland through what then consisted of great stretches of homeless prairies, trackless forests, and unexplored mountains, and thus io facilitate the development of that region, promote commerce, and establish a convenient highway for the transportation of mails, troops, munitions, and public stores to and from the Pacific Coast, with all the resultant advantages to the government and the public. To that end the act and resolution embodied a proposal to the company to the effect that, if it would undertake and perform that vast work, it should receive in return the lands comprehended in the grant. The company accepted the proposal and at enormous cost constructed the road and put the same in operation, and the road was accepted by the President. Thus the proposal was converted into a contract, as to which the company by performing its part became entitled to performance by the Government. Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 679, 680 [34 S. Ct. 907 (58 L. Ed. 1527)].”

Now, it must be entirely clear, if the deduction to he made the government in this ease is not controlled by tlie terms of the express contract made between the parties, then no rule whatever exists. That the government is by the terms of the contract entitled, when the services for which, the government is liable and must pay are performed over a line of road in part constructed through the aid of lands granted by the government, and other part not so aided, the deduction, to be made to the government must be calculated by a comparison of the miles of road traveled which were aided in construction by land grant with the number of miles constructed by the railway over which the service is performed without aid by the government. This position is the one for which the road contends in this case,, and is in most part conceded by the government itself. Such a rule of construction is plain, and capable of exact application in all eases. To my mind it is the rule applied by the Supreme Court in eases akin to the question involved in this instant ease. See U. S. v. Kansas Pacific Railway Co., 99 U. S. 455, 25 L. Ed. 289; United States v. Central Pacific R. Co., 99 U. S. 450, 25 L. Ed. 287, Mr. Justice Bradley delivering the opinion of the court, and United States v. Central Pacific Railroad Co., 118 U. S. 236, 6 S. Ct. 1038, 30 L. Ed. 173, Mr. Justice Woods delivering the opinion for the court.

In harmony with these eases, as I understand them, the trial court held the proper deduction to be made the government in this case was found by applying the rule as above stated, limiting it to what was actually done in -performing the services for which the government in this ease must pay. In this I think the trial court was fully justified and right. Tho majority of this court are of the opinion, if the services performed for the *662government in this ease had been performed in a different manner from what was actually done, which service, no doubt, the railway company would have performed, if it had been requested to so do, that in such case the contention now made by the government would obtain. Undoubtedly the men carried in the' military service of the government, being fully informed in making the journey from St. Paul to Seattle, deliberately selected the shorter route over which they actually traveled in perferenee to the much longer, more difficult, one over which the government, now, when pay day comes, is desirous of making payment because it is a few cents cheaper. If the rule here contended for by the government and upheld by the majority of this court obtains, then, in future, there will be no fixed rule of measurement to apply. The yardstick with which the measuring is done may be either three, or it may be four, feet in length.

Again, while the act of Congress conferring jurisdiction of eases of this nature on the federal courts does ordain the trial shall be before the court without the intervention of a jury, yet no method of procedure at such trial is ordained. Hence the procedure in the court must be the same as in trials before the court wherein a jury is waived. After stating the facts, the trial court in the instant case states as follows:

“Finding the facts to be as herein stated, I reach the conclusion that the plaintiff is entitled to judgment as prayed for, and it is ordered that judgment be entered accordingly. If more specific findings are desired, they may be prepared and presented.”

Thereafter, as shown by the record, it is stated:

“The defendant in the action above entitled having requested more specific findings of fact for the purposes of appeal herein, and the parties hereto having entered into a stipulation as to the facts, the court finds the facts to be as stated in the stipulation hereto attached.” “As a conclusion of law, the court finds that the plaintiff is entitled to judgment against the defendant for the sum of one dollar and sixty cents ($1.60).”

The record shows no request was made of the trial court to declare the law on the findings made to be in favor of the defendant or different from that which he declared generally for the plaintiff. Even should the trial court have been in error in so declaring, the law, what has the government under the settled rule of decision to present to this court?

The, assignments of error relied upon to work a reversal of this case are found at page 52 of the record, and are as follows:

“The court erred in the holding that the defendant was not entitled to land grant deduction on the basis of the ratio of land grant mileage to the total mileage of the road as originally constructed from St. Paul, Minn., to Seattle, Wash.

“The court erred in holding that the defendant was required to route its traffic by the longer route over which local service only was maintained in order to secure the benefit -of the land grant ratio as established at the time the railroads were constructed from St. Paul to Seattle.

“The court erred in holding that the routes of through trains giving first-class service over the cut-offs and the abandonment of through first-class service over the longer routes required the government to pay for the transportation service on the basis of the-route actually traveled.

“The court erred in holding that the procedure established by the accounting officers and followed for many years in the adjustment of plaintiff’s accounts on the basis of the ratio of land grant mileage to the total .mileage over the routes the plaintiff’s lines were originally constructed, regardless of the route over which the transportation was actually effected, should be reversed and set aside.

“The court erred in not dismissing the petition herein and in entering judgment for the plaintiff.

“By reason whereof defendant prays that the judgment aforesaid may be reversed, with costs.” 0

All of these'assignments of error relate to the ultimate decision of the trial court. In the early ease of Dirst v. Morris, 14 Wall. 484, 20 L. Ed. 722, Mr. Justice Bradley, delivering the opinion for the court, says:

“Had there been a jury, the defendant might have called upon the court for instructions, and thus raised the questions of law which he deemed material. Or had the law, which authorizes the waiver of a jury, allowed the parties to require a special finding of the facts, then the legal questions could have been raised and presented here upon such findings as upon a special verdict. But, as the law stands, if a jury is waived and the court chooses to find generally for one side or the other) the losing party has no redress on error, except for the wrongful admission or rejection of evidence.”

In Mercantile Mut. Insurance Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827, Mr. Justice Clifford, delivering the opinion for the court, says:

“But, where the finding is general, the parties 'are concluded by the determination of *663the court, except in cases where exceptions aro taken to the rulings of the court in tho progress of the trial. Such ruling's, if duly presented by a bill of exceptions, may be reviewed here, even though the finding is general; but the finding of the court, if general, cannot bo reviewed in this court by bill of exceptions or in any other manner. Facts found by a jury could only be re-examined under the rules of the common law, either by tho granting of a new trial by the court where the issue was tried or to which the record was returnable, or by tho award of a venire facias de novo by an appellate court for some error of law which intervened in the proceedings. Nothing, therefore, is open to re-examination in this case except such of tho rulings of the court made in the progress of the trial as are duly presented by a bill of exceptions.”

In Stanley v. Supervisors of Albany, 121 U. S. 535, 7 S. Ct. 1234, 30 L. Ed. 1000, Mr. Justice Field, delivering the opinion for the court, says:

“Where a case is tried by the court without a jury, its findings upon questions of fact are conclusive here; it matters not how convincing the argument that upon the evidence the findings should have been different.”

It is also well settled that a special finding of the facts, in the sense in which that phrase is used in the statute, is not a more report of all the evidence adduced at the trial, but consists of a statement of the ultimate conclusions of the trial court upon issues of fact 3'a.ised by the pleadings. Norris v. Jackson, 9 Wall. 125,19 L. Ed. 608.'

In Martinton v. Fairbanks, 112 U. S. 670, 5 S. Ct. 321, 28 L. Ed. 862, Mr. Justice Woods, delivering the opinion for the court, the headnoto to this opinion, evidently prepared for the purpose of stating the entire case, reads as follows:

“When there is no demurrer to the declaration, or other exception to the sufficiency of the pleadings, no exception to the rulings of the court in the. progress of the trial, in the admission or exclusion of evidence, or otherwise, no request for a ruling upon the legal sufficiency or effect of: tho whole evidence, or no motion in arrest of judgment, and the only matter presented by the bill of exceptions which this court is asked to review arises upon the exception to the general finding by the court for the plaintiff upon the evidence adduced at the trial, no question of law is presented which this court can review.”

In Hinkley v. City of Arkansas City (C. C. A.) 69 F. 768, Judge Thayer, delivering the opinion for tho court, said:

“The ease having been tried by the Circuit Court without the intervention of a jury, its findings on the issues raised by the pleadings having been general, and no instruction having been asked in the nature of a demurrer to the evidence, we are limited in our consideration of tho case to such errors as have been assigned relative to the admission or exclusion of testimony. No other errors that may have been committed by the trial court in the progress of the case are before us for review. Searcy Co. v. Thompson, 13 C. C. A. 349, 66 F. 92.”

Such 1 find to be the conclusively established rule. See Cooper v. Omohundro, 19 Wall. 65, 22 L. Ed. 47, Mercantile Mut. Insurance Co. v. Folsom, 18 Wall. 237. 21 L. Ed. 827, Lehnen v. Dickson, 148 U. S. 71, 13 S. Ct. 481, 37 L. Ed. 373, and many other eases.

As in the case at bar the facts were stipulated by the parties, and no objection to any stipulated fact was taken or exception saved, and as from those findings of fact the court made a general finding that the law was in favor of the plaintiff, and he was not asked to declaro the law to be different by any requested declaration of law, in my judgment there is nothing whatever in this ease that can be reviewed on this record. The assignments of error do not run to any action of tho court, except his act of entering judgment against tho defendant. Clearly this, under the eases, is not sufficient.

In Fleischmann Co. v. United States, 270 U. S. 349, 46 ,S. Ct. 284, 70 L. Ed. 624, Mr. Justice Sanford, delivering the opinion for tho court, said:

“The opinion of the trial judge, dealing generally with the issues of law and fact and giving the reasons for his conclusion, is not a special finding of facts within tho meaning of the statute. [Louisiana Mut.] Insurance Co. v. Tweed, 7 Wall. 44, 51 [19 L. Ed. 65]; Dickinson v. Planters’ Bank, 16 Wall. 250, 257 [21 L. Ed. 278]; Raimond v. Terrebonne Parish, 132 U. S. 192, 194 [10 S. Ct. 57 (33 L. Ed. 309)]; British Mining Co. v. Baker Mining Co., 1139 U. S. 222 [11 S. Ct. 523, 35 S. Ct. 147]; York v. Washburn (C. C. A.) 129 F. 564, 566; United States v. [Sioux City] Stock Yards Co. (C. C. A.) 167 F. 126, 127. And it is settled by repented decisions that, in the absence of special findings, the general finding of tho court is conclusive upon all matters of fact, and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the x>rogress of the trial were exeex>ted to and duly preserved by bill *664of exceptions, as required by the statute. Norris v. Jackson, 9 Wall. 125, 128 [19 L. Ed. 608] ; Miller v. [Brooklyn L.] Insurance Co., 12 Wall. 285, 300 [20 L. Ed. 398]; Dickinson v. Planters’ Bank, supra, 257; [Mercantile Mut.] Insurance Co. v. Folsom, 18 Wall. 237] 248 [21 L. Ed. 827]; Cooper v. Omohundro, 19 Wall. 65, 69 [22 L. Ed. 47] ; [Springfield F. & M.] Insurance Co. v. Sea, 21 Wall. 158, 161 [22 L. Ed. 511]; Martinton v. Fairbanks, 112 U. S. 670, 673 [5 S. Ct. 321 (28 L. Ed. 862) ]; Boardman v. Toffey, 117 U. S. 271, 272 [6 S. Ct. 734 (29 L. Ed. 898)]; British Mining Co. v. Baker Mining Co., supra, 222; Lehnen v. Dickson, 148 U. S. 71, 73 [13 S. Ct. 481 (37 L. Ed. 373)]; St. Louis v. [Western Union] Telegraph Co., 166 U. S. 388, 390 [17 S. Ct. 608 (41 L. Ed. 1044) ]; Vicksburg Ry. v. Anderson-Tully Co., 256 U. S. 408, 415 [41 S. Ct. 524 (65 L. Ed. 1020)] ; Law v. United States, 266 U. S. 494, 496 [45 S. Ct. 175 (69 L. Ed. 401) ] ; Humphreys v. Third National Bank (C. C. A.) 75 F. 852, 855; United States v. [Sioux City] Stock Yards Co., supra, 127. To obtain a review by an appellate court of the conclusions of law a party must either obtain from the trial court special findings which -raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them. Norris v. Jackson, supra, 129; Martinton v. Fairbanks, supra, 673. That is, as was said in Humphreys v. Third National Bank, supra, 855, ‘he should request special findings of fact by the court, framed like a special verdict of a jury, and then reserve his exceptions to those special findings, if he deems them not to be sustained by any evidence; and if he wishes to except to the conclusions of law drawn by the court from the facts found he should have them separately stated and excepted to. In this way, and in this way only, is it possible for him to review completely the action of the court below upon the merits.’ ”

As shown by the record in this case, there is nothing possible for this court to review. There is not a single objection found in 'the record by either party of anything the trial court did or failed to do, and the record is searched in vain for a single exception taken by either party to any act done, finding made, or conclusion reached by the trial court. How, then, can any contention be made by any one the trial court erred. As I understand, the settled rule of this court is as stated by' Judge Sanborn in Wear v. Imperial Window Glass Co., 224 F. 60, as follows:

The question of law whether-or not there was any substantial evidence to sustain any such finding is reviewable, as in a trial by jury, only when a request or a motion is made, denied, and excepted to, or some other like action is taken which fairly presents that question to the trial court and secures its ruling thereon during the trial. United States Fidelity & Guaranty Co. v. Board of Com’rs, 145 F. 144, 150, 151, 76 C. C. A. 114, 120, 121, and eases there cited; Mercantile Trust Co. v. Wood, 60 F. 346, 348, 349, 8 C. C. A. 658, 660, 661; Barnard v. Randle, 110 F. 906, 909, 49 C. C. A. 177, 180; Barnsdall v. Waltemeyer, 142 F. 415, 417, 73 C. C. A. 515, 517; Bell v. Union Pacific R. Co., 194 F. 366, 368,114 C. C. A. 326, 328; Seep V. Ferris-Haggarty Copper Min. Co., 201 F. 893, 894, 895, 896, 120 C. C. A. 191, 192, 193, 194; Pennsylvania Casualty Co. v. Whiteway, 210 F. 782, 784,127 C. C. A. 332, 334.

“There is another reason why no reviewable question of law is presented to this court in this case. A trial court is entitled to a clear specification by exception of any ruling or rulings which a party challenges and desires to review, to the end that the trial court itself may correct them'if so advised, and, if it fails to do so, that there may be a clear record of the rulings and the challenges thereof. For this purpose a rule has been firmly established that an exception to any ruling which counsel desire to review, which sharply calls the attention of the trial court to the specific error alleged, is indispensable to the review of such a ruling. Block v. Darling, 140 U. S. 234, 11 S. Ct. 832, 35 L. Ed. 476; Webb v. National Bank of Republic, 146 F. 717, 719, 77 C. C. A. 143; Union Pacific R. R. Co. v. Thomas, 152 F. 365, 372, 81 C. C. A. 491, 498; Armour Packing Co. v. United States, 153 F. 1, 16, 82 C. C. A. 135, 150, 14 L. R. A. (N. S.) 400.”

This was also the holding of this court in the recent ease of McFarland, County Treasurer, et al. v. Central National Bank of Topeka, 26 F.(2d) 890, and the more recent eases are therein cited, to wit: United States v. Atchison, T. & S. F. R. Co. (C. C. A.) 270 F. 1, 3, 4; Denver Live Stock Com. Co. v. Lee (C. C. A.) 18 F.(2d) 11, 14, 15; Id. (C. C. A.) 20 F.(2d) 531; Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55.

Again, much is said in the majority opinion as to the rulings of department officials made on this question at issue, and as to statements said to- have been made by officers of the railway at different times. However, it must be remembered the question here presented arises over a written contract entered *665into between the railway company and the government. What the parties are bound by is the true construction of the terms of this written contract, and not by what some one, whether an official of the government or an employee of the road, believed. Burke v. Southern Pacific R. Co., 234 U. S. 669, 34 S. Ct. 907, 58 L. Ed. 1527.

To my mind, the decision of the learned trial court was right, cannot be reviewed on this record, and, being right, should be affirmed.