United States v. Kansas Pac. Ry. Co.

26 F. Cas. 679, 4 Dill. 367

Opinion

MILLER, Circuit Justice,

in directing the entry of an order overruling the demurrer, in substance observed that he had never had any doubt that the demurrer must be overruled, but he had held it up on suggestion of counsel that the argument of the ease of Union Pac. R. Co. v. U. S., on appeal from the court of claims, might involve propositions affecting this case. 91 U. S. 72. That was a suit brought by the company against the United States, to recover the one-half of the freight earned by the company for carrying mails, etc., for the United States—the government claiming that all such earnings should go to pay the interest on the government bonds. That case was recently argued in the supreme court of the United States, and nothing was developed touching the right of the government to recover the five per cent of the net income, after the completion of the road, a right given in the original charter of July 1, 1862, and which in this respect has never been repealed or modified. Let the demurrer be overruled.

Judgment accordingly.