This suit is brought to recover charges made by the plaintiff for transportation of a private soldier in the regalar army of the United States from Albuquerque, N. M., to Prescott Junction, Ariz., over the railroad operated by plaintiff, of which a part was constructed by plaintiff, and a part operated under arrangement with other companies. The transportation service was performed by plaintiff on Ihe 30th and 31st days of October, 1892. While the amount herein sued for is inconsiderable, counsel for the government suggests that the sums ultimately to be affected by the precedent which the case establishes will aggregate many millions of *187 dollars. Jurisdiction of this court over the suit, as conceded by defendant, is derived from the act of congress of March 3,1887, entitled “An act to provide for the bringing of suits against the United States” (Supp. Rev. St. U. S. p. 559). The controversy between the parlies, as will fully appear later on, is limited to the question whether defendant is liable to plaintiff for the whole or only a part of the amount sued for. Under an assumption of counsel and the court that this issue was disclosed by the complaint itself, a general demurrer thereto was argued orally, some time ago, and submitted on briefs filed respectively by the plaintiff, the defendant, and, on special leave, the Southern Pacific Railroad Company. It appearing, however, upon a careful examination of the pleadings, that said issue was not then properly before the court, for the reason that the petition showed an admitted liability for part of the sum demanded, the demurrer, by consent of the defendant, was overruled, and an answer subsequently filed. The present hearing is a trial upon the merits by the court without, a jury, as provided for in section 2 of the aforesaid act of congress, and involves, with one other, the same questions that were argued on demqrrer, and therefore the briefs then filed are now applicable.

The material facts and pertinent statutes, other than those above mentioned, are as follows: Plaintiff is a corporation created by an act of congress entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast,” approved July 27, 1866 (14 Htat. 292). Section 1 of said act constitutes certain persons, therein mentioned, a body politic and corporate, under the name of the Atlantic & Pacific Itailroad Company, and provides, among other things, as follows:

Section 3 grants to the Atlantic & Pacific Itailroad, “for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway and its brandies,” 20 sections per mile, on each side of said railroad line, through the territories, and 10 alternate sections of land per mile on each side of said railroad wherever it passes through any state; and provides “that no money shall be drawn from the treasury of the United Htales to aid in the construction of the said Atlantic and Pacific Itailroad.’ ”

Sections 5, 11, 13, and 20 are as follows:

In the years 1869, 1870, and 1871, plaintiff surveyed and located a line of road, from Springfield, Missouri, and through New Mexico, Arizona, and California, to the Pacific Ocean. In the years 1882 and 1884, and along the line so located, plaintiff constructed a railroad, between Isleta Junction, N. M,, and Needles, near the Colorado river, in California. Isleta Junction is fifteen miles southwesterly from Albuquerque, upon the main line of road, and the soldier was transported from Albuquerque, through Isleta, and thence to Prescott Junction, Ariz.; so that, of the road over which said soldier was transported, that part between Isleta and Prescott Junction was constructed under said act of congress, and is, therefore, a land-grant railroad, while that'part east of Isleta, to Albuquerque, was built by another company, and, so far as the purposes of this action are concerned, is not a land-grant railroad. Plaintiff has not constructed any part of the line between. Springfield, Mo., and Isleta Junction, N. M., nor between Needles, Cal., and the Pacific Ocean. Plaintiff has received no government bonds to aid in the construction of its road.

By an act of congress entitled “An act making appropriations for the support of the army for the fiscal year ending June 30, 1893, and for other purposes,” approved July 16, 1892, rates were established for army transportation over land-grant railroads for the year ending June 30, 1893. Acts 52d Cong. 1st Sess. ( 27 Stat. 174 -183). The pertinent provisions of this act are as follows:

Pursuant to this act of congress, the secretary of war established rates for army transportation over plaintiff’s railroad, so far as said road was aided by a land grant, at 50 per centum of its regular tariff rates. The distance, as already stated, between Albuquerque and Isleta Junction, by rail, is 15 miles, and the total distance between Albuquerque, 3ST. M., and Prescott Junction, Ariz., over which line this soldier was transported, is 428 miles; so that the distance between Isleta Junction and Prescott Junction is a distance of 413 miles. Before the transportation services in question were rendered, plaintiff’s board of directors bad fixed the fare for first-class passengers from Albuquerque to Prescott Junction at the sum of $25.70 per passenger, and had fixed the rate of transportation for first-cla.ss passengers between Albuquerque and Isleta Junction at 70 cents per passenger, so that the regular tariff rate of the company between Isleta Junction and Prescott Junction was and is $25; and the petition alleges that the fare so fixed by its board of directors was reasonable. Defendant, prior to the commencement of the action, tendered to plaintiff the sum of $13.23, and has since kept the tender good. The rate fixed by congress— one-half of the regular tariff rate fixed by plaintiff’s board of directors from Isleta Junction to Prescott Junction — is $12.50, and, adding to this the full rate fixed by said board of directors, over the unaided part of the road between Albuquerque and Meta Junction, 70 cents, makes the aggregate of $13.20, — 3 cents less than the amount of the aforesaid tender. There is no allegation in the petition that the rate thus established and tendered by the government was unreasonable, unless implied from the allegation that the rate fixed by plaintiff’s board of directors was reasonable.

The question to be now decided is aptly stated in plaintiff’s brief, as follows:

■ For the purposes of this question, the rate fixed by the secretary of war will be deemed reasonable. I am not sure that there is anything in the pleadings to the contrary. It is doubtful, to say the least, if the averment of the petition that the rate for the public at large, fixed by plaintiff’s board of directors, was reasonable, can be held to charge, by implication, unreasonableness upon the rate for the government, fixed by the secretary of war. May it not be that, in view of the amount of business the government gives to the company, or for other cause, a rate against the government, to be reasonable, should be less than a rate against the public generally? Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263 , 12 Sup. Ct. 844. Conceding, however, as I have done by overruling defendant’s objections to the oral evidence offered on behalf of plaintiff, that the petition and answer properly raise the issue, then I hold that said evidence is insufficient to establish unreasonableness in the government rate. But one witness was introduced to the point, and he simply stated that the rate fixed by the plaintiff was reasonable. As already indicated, it is by no means clear that this statement implied that the government rate was unreasonable. Ascribing even that significance, however, to the statement, it is insufficient as proof, because merely an opinion of the witness, unfortified by any presentation of facts, and involving questions of law, and could, perhaps, without error, have been excluded as incompetent. The supreme court of the United States has uniformly held that a rate legislatively prescribed is, prima facie at least, reasonable. In the case of Ruggles v. Illinois, 108 U. S. 541 (2 Sup. Ct. 835), Mr. Justice Field said:

Without undertaking to define the words “reasonable” and “unreasonable,” it is sufficient now to say that the presumption that a rate fixed by congress is reasonable cannot be overcome, except by some showing of figures and other facts as to the earnings of the road in question; that is, expenses and receipts, during an adequate period. Railroad Co. v. Wellman, 143 U. S. 339 -346, 12 Sup. Ct. 400; Dow v. Beidelman, 125 U. S. 680 -690, 8 Sup. Ct. 1028; Budd v. New York, 143 U. S. 517 -552, 12 Sup. Ct. 468; Reagan v. Trust Co., 154 U. S. 401 , 14 Sup. Ct. 1047. No such showing was made or attempted on this trial, i Plaintiff’s claim therefore depends upon the proposition that plaintiff has a right, limited only by the proviso of.section 5 of the act of congress of July 27, 1866, and subject to the powers reserved in section 20 of said act, to fix and determine its ¿freights and fares, free from legislative restriction. With' reference to the reserved powers of section 20, plaintiff insists that, whatever may be their extent, they can be exercised *191 only through legislation which expressly repeals or amends the act, and that, therefore, the right conferred by said act to fix and determine charges for transportation is not restricted, or in any way affected, by the general provisions of the army appropriation bill of 1892, hereinbefore cited. Of these reserved powers, in their re-; lation to this army appropriation bill, I shall make further mention later on. The question first and now to be decided is whether or not the plaintiff, by virtue of the provisions of its charter, has an absolute right to control its traffic rates, within the limitations above indicated. This right plaintiff asserts, and claims to derive from section 13 of the act last mentioned. The salient part of plaintiff’s argument on this branch of the case, quoted from its brief, is as follows:

In order to weigh this argument correctly, it is necessary to understand in the outset what the power of the federal government; whim unaffected by statutory enactment, is, over charges for railroad transportation, and also the rule of construction applicable to statutes affecting, or claimed to affect, that power. The late Chief Justice Waite authoritatively stated the power and rule, with reference to a state, thus;

In another place the same distinguished jurist enunciated the rule as follows:

To same effect, see, also, Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418 , 10 Sup, Ct. 462, 702; Dow v. Beidelman, 125 U. S. 680 , 8 Sup. Ct. 1028; Beagan v. Trust Co., 154 U. S. 362 , 14 Sup. Ct. 1047.

This power of regulation winch a state has over railroad charges on traffic entirely within its, boundaries congress possesses when the traffic is between states, or between states and territories, or in territories. Covington & C. Bridge Co. v. Kentucky, 154 U. S. 205 , 14 Sup. Ct. 1087; First Nat. Bank of Brunswick v. County of Yankton, 101 U. S. 129 ; Late Corporation of Church of Jesus Christ of Latter-Day Saints v. U. S., 136 U. S. 1 , 10 Sup. Ct. 792.

Bearing in mind this general power of governmental control’ and the rule of construction applicable to statutes which are claimed to affect that power, let us now consider plaintiff’s argument. Is it true that by the provisions of section 13 of plaintiff’s charter (the act of congress of July 27, 1866), the government re-nunciated and bargained away its right to reasonably limit the charges for transportation of persons and property over plaintiff’s line of railroad? Can it be said that the surrender of the right or power in question has been “shown by clear and unambiguous language, which will admit of to reasonable construction consistent with the reservation of the po ver” ? Certainly there is no express *193 renunciation, and it can result by implication only on the theory that congress, by the use, in the section aforesaid, of the words “fix” and “determine,” intended that the actions designated by those words should be final, and therefore exempt from governmental supervision. Plaintiff admits that the word “fix” does not imply such a resuli, but contends that (he implication necessarily arises from the word “determine.” In this contention I am unable to concur, and do not think it is sanctioned, at least uniformly, even by the definitions approvingly quoted in plaintiff’s brief. Before examining these definitions, and as preliminary thereto, it; will be appropriate to notice two decisions of the supreme court of the United States, in which, indirectly, is attached to the word “determine” a meaning just the opposite of that for which plaintiff 'contends. In the case of Ruggles v. Illinois, 108 U. S. 536 , 2 Sup. Ct. 837, the special provision of the charter in controversy read as follows:

The supreme court held that this language was not a renunciation of state regulation over the subject. It is true that the ruling was made upon the ground that it was provided elsewhere in the same ad that the by-laws of the company should not be “repugnant to the constitution and laws of the United states, or of this state, or repugnant to this act.” The case, however, is useful here, as showing that the word “determine,” when applied to the action of a hoard of directors, does not mean that such action is final, in the sense that it cannot be reviewed by some other tribunal or body. Again, in the case of Illinois Cent. R. Co. v. Illinois, 108 U. S. 541 , 2 Sup. Ct. 839, the provision in question was as follows:

Upon the same line of reasoning as that adopted in Buggies v. Illinois, supra, the supreme court held that this language did not exempt the rates fixed by the company from legislative supervision. Here, again, the word “determine” is employed to denote an action by the board of directors which was subject to the control of the legislature, and therefore not final, as contended for by plaintiff.

Becurring now to the definitions adopted in plaintiff’s brief, we find that some of them, at least, in harmony with the two cases above cited, strongly negative the idea that the word “determine” signifies final, conclusive action. For instance, one of the definitions is, “to decide; as, 'the court determined the cause.’ ” Bow, all know that the decision of a court may or may not be final, and to say that “the court has determined a case” does not always, or even usually, imply that the decisión is, in law, an end of the litigation. Indeed, this inference would not be legitimate in any case where the court rendering the decision is generally subordinate to another tribunal; and *194 such, so far as rates of transportation are concerned, is practically the relation between a board of directors of a railroad company and the legislature of the government within whose jurisdiction the company operates. It is a somewhat striking coincidence that in the very statute cited in this opinion, at pages 1 and 2, which plaintiff invokes, and successfully, as authority for its present suit against the United States, congress has used the word “determine” for a purpose analogous to that of its employment in plaintiff’s charter, assuming the charter provision to be a grant of power, and with a meaning which is clearly opposed to that now insisted upon by plaintiff. Section 2 of said act provides: “That the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters named in the preceding section,” etc. The preceding section enacts as follows: “That the court of claims shall have jurisdiction to hear and determine the following matters,” etc. Yet, although authority is thus conferred upon said courts to “determine” the matters in said act committed to them, their judgments are not final, but subject to review in appellate jurisdictions. So, too, where power is granted to the directors of a railroad company “to determine” its rates of transportation, as was the fact in Ruggles v. Illinois, supra, and Illinois Cent. R. Co. v. Illinois, supra, such grant, unless otherwise clearly expressed, or unavoidably implied, is made subject to, rather than in renunciation of, governmental control.

There is another view of section 13, in its relations to other provisions of plaintiff’s charter, which strengthens my faith in the conclusion which I have reached as to the significance of the word “determine.” Thus far I have treated the provisions of section 13 of plaintiff’s charter as grants of power. Careful reading and study, however, of the whole act, convince me that said section was not designed to grant powers, but, rather, to impose limitations upon powers previously granted to the company. These powers are clearly granted in section 1, as follows:

Here is given, not expressly, but by unavoidable inference, the power to transport persons and property, and to charge therefor such rates as the company may deem proper, subject to the common-law limitation that the rates charged shall be reasonable. Railroad Co. v. Blake, 94 U. S. 180 . It should be further and particularly observed that the phraseology of this section is that which is precisely adapted to, and usually employed for, the delegation of power, namely, “and said corporation is hereby authorized and empowered,” etc., “and the said company is hereby vested with all powers,” etc. Such, however, is not the case with section 13. The words there employed are not words of grant, but of limitation. The section does not purport to delegate a power, but, on the contrary, clearly imposes a duty with reference to a power already existing in the company, by prescribing the manner in which the power shall be exer- *195 fist'd. The first clause provides “that the directors shall make and publish an annual report of their proceedings and expenditures, verified bj the affidavits,” etc. Will it be claimed for a moment that this clause was intended to confer upon the directors power to'make and publish the report referred to? Certainly not. The power they already possessed. The object of the provision was to require its exercise in a particular manner. The same is true of the latter clause of the section: “And they shall, from time to time, fix, determine and regulate the fares, tolls and charges to be received and paid for transportation of persons and property,” etc. The manifest object of this clause was not to grant, but to point out and limit the manner in which a power already granted should be exercised; that is, the rates should be fixed and determined in advance of the services rendered, and not capriciously, or according to the supposed exigency of each occasion. This explanation of the object and scope of section 13, namely, that it is restrictive, and not an enlargement of the grants made in section 1, is itself, it seems to huí, a complete answer to so much of plaintiff's argument as relates to the word “determine.”

In this connection, there is another circumstance worthy of notice, and it is this: The Southern Pacific Railroad Company, directly concerned in the questions of law involved, and upon the same side with plaintiff, in its brief upon the pending demurrer, submitted by consent of parties and leave of the court, makes the following statements :

And also:

And again, on page 27 of said brief, the government’s contract with the company is spoken of as a contract “to the effect that the company should have the power, within reasonable limits, to fix and determine uniform rates for all services of like character rendered by it as a common carrier,” etc. The words “within reasonable limits” are emphasized in the brief by the use of italics. These extracts admit that there is some limitation upon the company’s power over transportation rates, and, to this extent, antagonize the meaning plaintiff gives to the word “determine.”

!n further support of this meaning, plaintiff, at page 8 of its brief, asserts that the proviso in the fifth section of its charter,— *196 the act of July 27,1866, — as follows: “Provided, that the said company shall not charge the government higher rates than they do individuals for like transportation and telegraphic service,” — shows “that ‘congress understood that it absolutely vested in the board of directors the power to finally determine rates of fare,” and then adds: “If congress understood that it had reserved to itself the power to, at all times, fix the charges for the services that the railroad company might perforin, for the government, this proviso in the fifth section was, and is, an absurdity. To give full force and effect to all parts of the act necessarily compels giving force and effect to this proviso, and to give to it force and effect is to concede the proposition contended for by us.” I fail to discern the inconsistency here asserted between a present limitation, which the proviso mentioned imposes, and reserved power in the government to make additional limitations if future exigencies should require. After the enactment of the company’s charter, further governmental restriction upon rates could, of course, be imposed only by legislation, additional and sul (sequent to the charter. Such legislation might or might not be required. This, obviously, would depend upon whether the rates 1 hereafter to be fixed and determined by the company were satisfactory or otherwise to the government; and must, of necessity, be left to the developments of the future. In the meantime there was one limitation which congress thought it expedient to impose at once, namely, that the government should not be charged higher rates than individuals for like transportation and telegraphic service. The imposition of this restriction did not preclude further regulations b,y congress; otherwise there has been accomplished what the authorities uniformly declare cannot be done, — the surrender of a high power of government by uncertain and ambiguous implication.

My conclusion, as already indicated, is that the right of plaintiff, under its charter, and withoui reference to section 20, to fix and determine its freight and fares, is not absolute and unrestricted, but subject to congressional limitation, within the bounds of reasonableness; and that, since the rate fixed by the secretary of war, according to authorities cited, is presumptively reasonable, and there is no sufficient proof of unreasonableness, said rate is a lawful restriction, and plaintiff’s charge in excess thereof an unlawful charge.

There is another ground, which, I think, will support the judgment to be entered herein, and it is that, whatever construction may be placed upon section IS of the plaintiff’s charter, congress, under the reserved powers of section 20, has the right, within reasonable limits, of course, to «¡guíate the freights and fares fixed and determined by plaintiff’s board of directors; and that the provisions of the army appropriation bill of 1892, prescribing a maximum charge for government transportation, although of general application, are a legitimate exercise of these reserved powers. It is not my purpose to discuss this ground, but simply to refer to some of the authorities by which, in my judgment, it is supported. These are the cases of U. S. v. Union Pac. Ry. Co., 160 U. S. 1 , 16 Sup. Ct. 190; Peik v. Railroad Co., 94 U. S. 164 ; Shields v. Ohio, *197 95 U. S. 319 . It is true that in the two cases last cited, the power of amendment and repeal was reserved without qualification, but I hardly think it can be claimed that the condition attached to the reservation in section 20 of plaintiff’s charter, which requires “due regard for the rights of said Atlantic and Pacific Company,” is violated by the imposition of a reasonable limit upon the company’s rates. Indeed, the supreme court, speaking directly to this question, in U. S. v. Union Pac. Ry. Co., says:

The case of Shields v. Ohio, supra, is particularly in point, as the act prescribing the maximum was a general act, applicable to all railroads, and did not purport specially to repeal or alter the charter of the particular company whose rates were involved in the litigation. In that ease, the supreme court says:

Hoe, also, Spring Valley Waterworks v. Schottler, 110 U. S. 347 , 4 Sup. Ct. 48; Water Co. v. Clark, 143 U. S. 1 , 12 Sup. Ct. 346; Stone v. Wisconsin, 94 U. S. 181 . In this latter case the alteration was effected by a general statute.

The foregoing view’s render it unnecessary for me to pass upon the other points that have been argued. With, reference, however, to section 11 of plaintiff’s charter, it is appropriate to observe that, no matter what meaning be ascribed to that section, it will not conflict with the constructions which I have placed upon other parts of the act. If the section applies to government transportation, when effected by plaintiff in the ordinary operation of its road, then, of course, the rate fixed by the secretary of war pursuant to the army appropriation bilí of 1892 has express warrant in the. power of regulation reserved in the latter clause of ihe section. If, however, the section be held, as plaintiff, upon the authority of Lake Superior & M. R. Co. v. U. S., 93 U. S. 442 -460, insists it should be held, to contemplate direct occupancy and use of the road by the government for public purposes, and to apply only in that event, then it follows that the supervisory power of the government over-freights and fares, while the road is operated by plaintiff, through its usual agencies and methods, is unaffected by said section. Governmental occupancy and use of a railroad, without an agreement *198 therefor between the government and owner, would be an appropriation of private property to public purposes, wholly outside the scope of the supervisory power above mentioned, and lawfully ac-complishable only through an exercise of the right of eminent domain. Probably it was for this reason, quoting from Justice Bradley, in the case last cited, that “congress, in most of the legislative acts by which it has made donations of the public lands to the states in which they lie for the purpose of aiding in the construction of railroads, has stipulated that the railroads so aided shall be public highways for the use of the government, free from all tolls or other charge for transportation of its property or troops.” Conceding, therefore, in the case at bar, that congress, by the provisions, on this subject, of section 11 of plaintiff’s charter, “stipulated,” and did nothing more than stipulate, that the government, for its own uses, and upon the terms in said section prescribed, might possess and operate plaintiff’s road, should the public interests at any time require such a course, surely it cannot be said that to thus provide for an extraordinary contingency implies a surrender by the government of its power of regulation in ordinary cases.

Prom the foregoing views it results that defendant’s liability to plaintiff on account of the transportation service sued for is $13.20, while, by reason of defendant’s tender of payment, plaintiff is liable for the costs of suit. Judgment will be accordingly entered.