Full opinion text
HULEN, District Judge. By this action, the railroads who are plaintiffs seek a declaratory judgment holding that by virtue of a certain written instrument known as “Joint Division Sheet No. 200-A” the railroads, parties to this action, are required to make a division of rates or revenue resulting from land grant shipments on the basis of the percentages set out in “Joint Division Sheet No. 200-A”. The defendants by answer, in effect, pray for a declaratory judgment to the contrary. Plaintiffs are western lines, operating in the Southwest Freight Bureau Territory. Defendants are eastern lines, operating in Central Freight Association Territory, with the Mississippi River as the approximate dividing line. The complaint refers to the execution by all parties to this case" of “land grant or equalization agreements” with the Government, and alleges: “That said freight land grant equalization agreements were in full force and effect at all times herein mentioned, and that •by virtue thereof and the practices of the carriers thereunder, the said land grant rates over non-land grant, competing or equalizing routes constitute joint rates ‡ * The complaint then alleges that Joint Division Sheet No. 200-A is a contract entered into “on April 1, 1940,” by the parties plaintiff and defendant (with other roads) “to avoid and prevent future controversies as to the apportionment of the revenue derived from all traffic moving under joint rates between the Territories aforesaid, including those in effect between points on the lines of plaintiffs and defendants herein, * * * fixing and determining the percentages to be thereafter used in dividing the revenue received for the transportation of all traffic moving under joint class or commodity rates between points in the two Territories aforesaid” (Page 6, Complaint) Defendants deny the position of plaintiffs and charge: “By its existing freight land grant equalization agreement with the Government of the United States each of the defendants has strictly limited its participation in reduced rates granted to the Government and the measure of such reduced rates, as follows : “ ‘(d) The participation of this carrier in rates derived through land-grant deductions is subject to the limitation that this carrier will participate only in deductions for the land-grant mileages within Central Freight Association territory of the lines of railroad in the southern peninsula of Michigan and of the Illinois Central within Illinois between Chicago and Cairo and between Minonk and Centralia, both inclusive.’ “The defendants have never at any time made any agreement with the plaintiffs that defendants would participate in bearing any land grant deductions accruing from land grant mileage within plaintiffs’ own rate territory, or an agreement of any character with the plaintiffs governing or relating to the net compensation to be received by the defendants or by the plaintiffs from the transportation of the Government freight traffic referred to in the complaint. On the contrary, the compensation due and payable to the plaintiffs and to the defendants, and each of them, for the transportation of such freight is fixed and determined solely by the said respective equalization agreements of the respective parties and by operation of law.” (Page 3 of Answer) The dispute between the plaintiffs and defendants as to the proper division of revenue derived from land grant rates, has existed for many years, as between plaintiffs Missouri Pacific and St. Louis Southwestern Railway Company and defendants since 1934, as between the remaining plaintiff and defendants since 1942. On certain Government traffic (military or naval property of the United States moving for military or naval and not for civil use) moving over “land grant roads” the Government is by law entitled to what is known as “land grant deductions.” This results from the policy of the Government during the building or expansion period of railroads, in granting to certain railroads public lands upon which to build rights-of-way. The lines constructed over lands thus, granted by the Government to the railroads are known as “land grant mileage.” The Laws of the United States now provide that the Government will not be required to pay in excess of fifty per cent of the lowest rate paid by the public, or the lowest commercial rate, for transportation of Government property over “land grant mileage.” This is on the hypothesis that the Government, by the land grant, has helped to construct the land grant mileage, and that by such assistance, has paid in advance a portion of the rate, and when it pays the reduced or land grant rate, it is thereby paying the unpaid portion of the transportation charge for Government property over the land grant mileage. The reduced rate charged the Government for this transportation is known as a “land grant rate.” “However, there are scores, if not hundreds, of other railroad routes in existence between the Territories aforesaid to which the land grant rates do not apply as a matter of law and compulsion. In order to have the benefit of participating in the transportation of such Government freight as above defined under land grant rates over other than land grant routes, commonly referred to as non-land grant, competing or equalizing routes, each of the parties hereto or their predecessors in interest, long prior to April 1, 1940, severally entered into a certain written contract or agreement with the War Department of the United States. These contracts are known as ‘freight land grant equalization agreements.’ They provide that the parties thereto, together with other common carriers, shall accept for transportation over non-land grant, competing or equalizing routes, such Government freight at the lowest net rates lawfully available as derived through deductions on account of land grant distances from commercial rates as aforesaid, applying from point of origin to point of destination at the time of movement over land grant routes.” (Page 8 of complaint) Plaintiffs and defendants have had, not joint but individual, land grant agreements with the Government for over forty years. For the purpose of arriving at the land grant rate, the Government has always divided the Commercial rate east and west of the river on a territorial basis and determined the land grant deductions due the Government over the respective east and west lines separately. For over thirty years each of the parties to this case, regardless of which were the collecting or settling carrier, carried the land grant deduction in the territory served by it. In 1934 the defendants made some changes in their land grant agreements with the Government. Basing its action on these changes in land grant agreements by the defendants with the Government, two of the plaintiffs (Missouri Pacific Lines and St. Louis Southwestern Railway) thereupon commenced to pass on to the eastern lines part of the land grant deductions made on the western lines, in cases where they were the collecting carrier. In 1942 the other plaintiff took up the practice, in a general way, in cases where it was the collecting carrier. The defendants have consistently at all times settled with western lines, and insisted they should do likewise, on the territorial basis, as was the practice of all the parties prior to 1934. As a consequence of this difference and dispute as to division of revenue derived from traffic moving under land grant rates, where the shipment originates on defendants’ lines, and terminates on plaintiffs’ lines in Southwest territory, and plaintiffs are the collecting carriers, the plaintiffs now divide the land grant rates or revenues according to percentages set out in Joint Division Sheet No. 200-A. When the shipment originates on the plaintiffs’ lines, and moves over into Central territory on defendants’ lines, and the defendants are the collecting carriers, the defendants now divide the revenue on the territorial basis; that is, on the basis of deductions for land grant mileage in the respective territories. The making of 1 and grant rates is a complicated mathematical problem. The Government first ascertains the route between the territories containing the greatest amount of land grant mileage, in order to obtain the lowest land grant route. This route is known as a basic or governing route. Having determined the route which includes the greatest amount of land grant mileage, there is deducted from the lowest published or commercial rate an amount equal to 50% of that part of the commercial rate that is applicable to that part of the governing route that is composed of land grant mileage. After these deductions are made, under the mandate of the federal statute, the amount resulting or left is the land grant rate from A to B. If a shipment travels over a “competing route” instead of the “governing route” on a railroad that had entered into a land grant equalization agreement, it would be carried under the land grant agreement at the same rate or charge as the land grant rate. Only the governing route is compelled to carry the Government’s freight at the land grant rate. The making of land grant agreements by competing lines is purely voluntary. On most Government shipments traveling on land grant rates, whether over competitive or governing route, there are more land grant deductions available to the Government in the Southwestern territory than in Central territory. Under these circumstances if the division of the land grant rate is made under Joint Division Sheet No. 200-A, plaintiffs receive a larger percentage of the revenue in the division of the rate than if the division had been made on a territorial basis, because a part of the land grant deduction for land grant mileage in the southwest territory is passed from the carriers in Southwestern territory to carriers in Central territory. Specifically it is this transfer, from west to east, of land grant deductions that is the crux of this case. A simple example in an assumed case will demonstrate the manner of transfer of the land grant deduction, where Joint Division Sheet No. 200-A is used in division of land grant rates: Assuming a joint through rate of 100 cents from a point in Southwest territory to a point in Central territory; first, the through rate is broken down by the Government on the territorial basis to ascertain the per cent of the commercial rate due the carriers in each territory. This is done by using the commercial divisions of Joint Division Sheet No. 200-A and is required by order of the War Department. Assume that Joint Division Sheet No. 200-A provides for a division of the revenue of 50% to the eastern roads and 50% to the western roads; assume that the land grant deduction on this shipment is ten cents in the Central territory and twenty cents in the Southwestern territory. Under the defendants’ method of division, or the territorial basis, that is each territory carrying the land grant deductions, in the respective territories, defendants’ distributive share of the revenue would be forty cents and the plaintiffs’ distributive share would be thirty cents. On the same shipment, if the revenue derived from the net land grant rate were divided on plaintiffs’ theory, or according to Joint Division Sheet No. 200-A, the eastern lines would receive thirty-five cents and the western lines a like sum, notwithstanding the land grant deductions were twice as much on the western lines as on the eastern lines. Difference Between Defendants’ And Plaintiffs’ Method of Settlement Assumed Joint Through Rate — 100 Cents Assumed Divisions (Joint Div. Sheet No. 200-A) 50% to East Roads 50% to West Roads Defendants’ Basis 1. Rate Divides 50$ East 50$ West 2. Land Grant Deduction 10$ East 20$ West 3. Defendants Would Distribute Revenue 40f! East 30^ West .... 70$ Plaintiffs’ Basis 4. Rate Divides 50$ East 50{! West 5. 50% of 30^ (Sum of Land Grant Deductions) 15$ East 15^ West 6. Plaintiffs Would Distribute Revenue 35$ East 35(é West .. .. 70$ 7. 50% of “Net Rate” of 70$ 35$ East 35 $ West Evidencing the actual result of such divisions is Exhibit 13, showing “representative” shipments from points of origifi. and destination in ' the two territories. Column one lists point of origin and destination; column two shows per cent of revenue received by plaintiffs (west of gateways) and per cent received by defendants (east of gateways) if the division of the revenue or land grant rate is made as set in Joint Division Sheet No. 200-A, or as plaintiffs make divisions where they are the collecting or settling carriers. Column three shows the per cent of revenue or land grant rate received by plaintiffs (west) and defendants (east) where the division is made on a territorial basis, as defendants make divisions, where they are the collecting or settling carrier. Column 1 Column 2 Column 3 Proportions of Revenue at Land Grant Rates on Basis of Division Sheet 200-A Proportions of Revenue at Land Grant Rates on Territorial Divisional Basis. Origin and Destination West of East of Gateways Gateways (Plaintiffs) (Defendants) West of East of Gateways Gateways (Plaintiffs) (Defendants) Newburg, Mo. and New York, N. Y. 32% 68% 23.83% 76.17% Mt. Vernon, Mo., and New Cumberland, Pa. 42 58 27.64 72.36 Bentonville, Ark., and Philadelphia, Pa. 42 58 34.62 65.38 Van Burén, Ark., and Philadelphia, Pa. 46 54 28.76 71.24 Tulsa, Okla., and Columbus, Ohio 57 43 54.71 45.29 Oklahoma City, Okla., and Newark, N. J. 48 52 42.52 57.48 Gideon, Mo., and Schenectady, N. Y. 36 64 30.66 69.34 Springfield, Mo., and Iona Island, N. Y. 38 62 27.57 72.43 Osceola, Ark., and Battle Creek, Mich. 54 46 48.50 51.50 Springdale, Ark., and Schenectady, N. Y. 42 58 33.99 66.01 Tulsa, Okla., and Brooklyn, N. Y. 45 55 37.65 62.35 Oklahoma City, Okla., and Jeffersonville, Ind. 65 35 60.13 39.87 Reducing the same shipments as shown above to total revenue received and showing actual division of the revenue under the land grant rate, we get the following result : Column 1 Column 2 Column 3 Total Revenue Under Land Grant Rates Divisions Under Percentages in Joint Division Sheet 200-A Divisions Under Territorial Basis West of Gateways-(Plaintiffs) East of Gateways (Defendants) West of Gateways (Plaintiffs) East of Gateways (Defendants) 475.20 152.06 323.14 113.23 361.97 405.99 170.52 235.47 112.20 293.79' 427.00 179.34 247.66 147.82 279.18- 363.19 167.07 196.12 104.47 258.72' 405.28 231.01 174.27 221.74 183.54 586.54 281.54 305.00 249.39 337.15 387.65 139.55 248.10 118.85 268.80 203.12 77.19 125.93 56.01 147.11 600.38 324.21 276.17 291.17 309.21 427.43 179.52 247.91 145.29 282.14 503.53 226.59 276.94 189.58 313.95 440.18 286.12 154.06 264.70 175.48 Reduced to its foundation plaintiffs’ position, that land grant rates are joint rates and that Joint Division Sheet No. 200-A is a contract between the parties hereto that controls the division of those rates, presents the proposition that by virtue of the freight land grant equalization agreements filed with the War Department by all the parties, land grant rates become joint rates and that it was the intention of the parties in entering into Joint Division Sheet No. 200-A to agree on the division of such joint rates, together will all other joint rates. Plaintiffs assert the affirmative of these issues and therefore plaintiffs must carry the burden of proof. That this is a suit for a declaratory judgment does not change the rule. We quote from a case involving a declaratory judgment: “It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action.” Reliance Life Ins. Co. v. Burgess, 8 Cir., 1940, 112 F.2d 234, loc.cit. 237, 238, reh. denied, 1940, 311 U.S. 730, 61 S.Ct. 391, 85 L.Ed. 475. This case involves large sums of money, other cases, are pending or contemplated on the same or similar issues, the parties have gone to great expense in preparing-their case and have, by able and eminent counsel, presented and briefed it with meticulous care. A full discussion and decision on the issues presented is called for. By answer of plaintiffs to interrogatories, and reiterated in brief filed by them, they state their position that land grant rates are joint rates by virtue of the equalization agreements filed by the defendants with the War Department in 1934, as follows: “ * * * these plaintiffs state that the practices of the defendants by virtue of which the land grant rates over non-land grant, competing or equalizing routes constitute joint rates within the meaning of the contract (Joint Division Sheet 200-A) described in the complaint, are as follows: “Defendants severally entered into a written contract or agreement with the War Department of the United States, known as a ‘freight land grant equalization agreement.’ In said contract or agreement with the War Department, the defendants, with other common carriers by railroad, including these plaintiffs, agreed to accept for transportation over non-land grant, competing or equalizing routes such Government freight at the lowest net rates lawfully available as derived through deductions, on account of land grant distances, from commercial rates applying from point of origin to point of destination at the time of movement over land grant routes. “By entering into contracts with the War Department as aforesaid, defendants assumed the responsibility of dividing the net land grant rates, after April 1, 1940, in accordance with the provisions of Joint Division Sheet No. 200-A attached to the complaint herein.” What were the terms of the land grant agreements between the defendants and the Government prior to 1934, what changes were made in those agreements in 1934, and the 'effect of those changes as they may or may not,, have affected the character of the rate thereby created? The land grant agreements of all defendants executed in 1934 are substantially the same in their terms. By paragraph One of those land grant agreements they agree "to accept for the transportation of property shipped for account of the Government of the United States and for which the Government of the United States is lawfully entitled to reduced rates over land-grant roads, ■the lowest net rates lawfully available, as derived through deductions account of land-grant distance from lawful rates filed with the Interstate Commerce Commission or the various State Commissions applying from point of origin to destination at time of movement.” Sub-paragraph (a) of Paragraph 2 of the Agreement restricts application of the agreement on traffic destined to or received from points on lines of other carriers, that the agreement will apply “in connection with such carriers as have agreements” as set out above. Comparing the 1934 land grant agreements of defendants with those in effect prior thereto, we find they contain language substantially the same as paragraphs 1 and 2(a) of the 1934 agreement. (See Exhibits V-l and B-2). Sub-paragraph (b) of Paragraph 2 provides the agreement is subject to the exceptions in the agreements of each individual carrier forming a part of the through route of movement.” Sub-paragraph (c) of Paragraph 3 provides that the provision of sub-paragraph (b) of Paragraph 2 “shall not operate to restrict equalization to or from junctions with said Central Freight Association carriers.” We note particularly paragraph three: “that any land grant deductions which are not participated in by any of said carriers (Trunk Line, New England Freight Association Carriers) by reason of their not having freight land-grant equalisation agreements on file with the Quartermaster General, War Department, Washington, D. C., will be absorbed by agreement carriers participating in the through movement,” provided that the carrier participating in the through movement “has a freight land grant equalization agreement containing this exception.” Paragraph three is the sole reference in the land grant agreements to the subject of absorbing land grant deductions on lines other than Central Freight Association territory carriers. The rule “Expressio unius est exclusio alterius” could well be applied to the contract in this particular. Certainly it evidences the intention of the contracting parties. It lends no aid to plaintiffs’ claim that defendants are required to absorb land grant deductions in Southwestern territory under the terms of their 1934 land grant agreements. The reason why defendants changed the terms of their land grant agreements with the War Department in 1934 was given by witness Howard, Assistant General Freight Agent of the Pennsylvania Railroad. Mr. Howard’s statement was not disputed nor challenged by the plaintiffs. It is as follows: “The condition that led up to the change that was made in the Pennsylvania Railroad agreement in 1934 might best be explained by describing the situation as existed prior to 1934 in the lower peninsula of Michigan and the State of Illinois. Considering first the conditions in the State of Michigan lower peninsula prior to 1934, no Central Freight Association Line had filed an agreement that equalized all of the land grant mileage in Central Freight Association Territory. This is true both as to Michigan and Illinois. The limitations in the agreement were taken care of or provided by means of exceptions carried in the individual agreement. Those exceptions were stated either in an affirmative or a negative form. By that, I mean that these exceptions provided that a certain line would or would not equalize certain land-grant mileage. “To illustrate, the agreement of the Pennsylvania Railroad that provided affirmatively that it would equalize the land-grant mileage of the Pere Marquette Rail-1 road between Flint, Michigan and Ludington, Michigan, and it would also equalize the land-grant mileage of the Grand Trunk Railway between Port Huron and Flint, Michigan. At the same time, the equalization agreement with the Michigan Central which is now a part of the New York Central, provided negatively that it would not equalize the land-grant mileage of the Pere Marquette, nor would it equalize the land-grant mileage of the G. R. & I., now a part of the Pennsylvania. “The often conflicting conditions and statements in the exceptions were very confusing to the Government, as well as to the railroads themselves, and they constantly led up to changes that were being made very rapidly. During a period of just a little over two years immediately prior to the changes that were made in 1934, one of the plaintiff lines, the New York Central System, made no less, or field no less than twelve new agreements with the Government during that period of approximately two years.” Q. “Well, did those several changes involve a measure of the land-grant deductions ,which they would equalize in the State of Michigan or in the State of Illinois, or was it both?” A. “They involved both; in other words, the individual agreements of the Central Freight Association Lines took care, and took care only, of equalization in those two states of Michigan and Illinois. They never did go beyond that. The situation in the State of Illinois was the same, that is, so far as the changes that were being made, the early agreements of the Central Freight Association Lines limited the equalization of land-grant mileage in Illinois to that section of the Illinois Central Railroad between Kankakee, Illinois and Chicago, a distance of 54 miles. The various Government agencies that made use of the equalization agreements were constantly developing new routes whereby they could utilize a greater segment of the Illinois Central land-grant mileage and thereby obtain a correspondingly lower net charge to the Government. There were quite a number of these instances developed, and as they were developed, there was a scramble on the part of the Central Freight Association Lines to amend their agreements and provide for another exception to equalize this new route or that new route as they were developed. “During a period of from eight to. ten years prior to the time the changes were made in the 1934 agreement, various Government officers, principally in the War Department, were using every method at their command to induce the Central Freight Association Lines to stabilize and simplify the agreements as they existed at the time. They asked that the Central Freight Association Lines eliminate what they called exceptions to exceptions, because they were unable to properly interpret the agreements, and they were not sure whether one Central Freight Association Line could handle traffic on a competitive basis with another Central Freight Association Line. The condition reached the point in 1934 where neither the Government nor the railroads themselves knew just where they stood, and the pressure was so great that the Central Freight Association Lines decided to comply with the request of the Government to eliminate the exceptions covering land-grant equalization in the State of Illinois and in the lower peninsula of Michigan, thereby placing all Central Freight Association Lines on a parity, one with the other, in competition on Government traffic moving within Central ' Freight Association Territory, and that action was taken during the fall of 1934. Such were the changes, and such were the causes for the changes. Neither related to conditions in Southwestern territory or land grant agreements of plaintiffs or any other western carrier. Plaintiffs were not consulted about the changes made by the defendants in their land grant agreements with the Government. There is no evidence that the plaintiffs knew of the changes until the contracts were executed and filed with the War Department. There is no provision in defendants’ land grant agreements which, on their face, can be construed as a contractual obligation by the defendants to absorb land grant deductions in the territory of the plaintiffs or by which land grant rates are converted into joint rates. This interpretation is observed in the conduct of one of the plaintiffs (St. Louis San Francisco Railway Company) in this case, who continued, to their financial loss, after the 1934 changes were made by defendants in their land grant agreements, for a period of approximately eight years, to make division of land grant rates on the basis that defendants had not extended their land grant equalization agreements to land grant west of the river by such changes. Other southwestern roads, who stood to profit by construing the 1934 changes in defendants’ land grant agreements as extending the equalization of land grants to points west of the river, even to this day, have failed to place such an interpretation on the changes and have continued to settle and agreed to settle land grant rates on the same basis as they did prior to the 1934 changes in defendants’ land grant agreements, namely on the territorial basis, that is defendants’ equalizing or absorbing land grant deductions only east of the Mississippi River. As soon as the 1934 land grant agreements were executed by the defendants and the Government, two of the plaintiffs (Missouri Pacific and St. Louis Southwestern Railroads) originated the practice, where they were the collecting carriers of the net land grant rates, of making the division on commercial divisions — at that time a unilateral division sheet of the Southwestern carriers known as the “Malcolm Percents.” The result of this action was that the defendants received from the two plaintiffs a division of the revenue from the land grant shipments collected for by them, representing an absorption by the defendants of part of the land grant deductions made under land grant agreements of the two plaintiff lines for land grant mileage equalized by them west of the river. The defendants promptly protested such character of settlement, and consistently continued to protest. That one of the two plaintiffs was then in some doubt as to the correctness of its conduct is evidenced by the following excerpt from a letter the Missouri Pacific Railroad sent to the Pennsylvania Railroad on the subj ect in 1937: “There appears to be a difference of opinion amongst the CFA lines as to just how much of this land grant they will equalize, <htd until some definite arrangements can be made between the Central Freight Association and western lines as to„ how this net rate should divide, our Accounting Department will continue to divide the net cash rate over route of movement on the agreed per cents via that route. Perhaps this question is of enough importance to either your line or some other CFA carrier to list the subject for joint consideration of the Division Committees of the Central Freight Association and the Western Trunk Line Committee.” No evidence appears in the record that the defendants at any time have ever made a settlement of a land grant rate in cases where they were the collecting carriers in which they assumed any land grant deductions accruing on account of land grant mileage in the southwest or plaintiffs’ territory. That there was never any intention on the part of the defendants at any time, by entering into any land grant contract with the Government, to agree to absorb land grant deductions accruing on account of land grant mileage in the southwestern territory is shown by the record. Plaintiff Missouri Pacific Railroad Company concedes this fact by a letter dated March 24, 1937, addressed to the defendant Pennsylvania Railroad Company. “Your equalization agreement with the U.S. Government, as it now stands, carries no restriction as to the extension of your equalization, and while it is possibly true that your company as well as other Central Freight Association lines did not intend to stand any of the land grant deductions west of the River, nevertheless your agreement states that you will, in connection with other carriers, protect the lowest net cash rate from point of origin to destinations.” (Ex. L-4) We can find no language in the agreement that will sustain the contention expressed in this letter. Land grant agreements are contracts between the individual carrier and the Government. They are purely voluntary and subject to such terms only as the contracting parties agree upon. Plaintiffs have no lawful right to control in any manner defendants’ land grant agreements with the Government. Defendants have no lawful right to control in any manner plaintiffs’ land grant agreements with the Government. They are subject to cancellation by the parties to them without interference from any other carrier. This too was conceded by the plaintiff Missouri Pacific Lines in a letter dated April 18, 1941 (Exhibit 0-4), and in a letter dated January 8, 1942 (Exhibit P-4). We quote from the latter communication: “The signing of this agreement on the part of the Pennsylvania Railroad was purely voluntary and they are, of course, at liberty to cancel this equalization agreement whenever they see fit to do so.” Both of the letters just referred to were written subsequent to the effective date of Joint Division Sheet No. 200-A (April 1, 1940), yet the author of those letters now joins plaintiffs in asserting that the defendants are without power to contract freely by making land grant agreements with the Government on such terms as the parties to the contracts may agree upon, by reason of the Joint Division Sheet No. 200-A, effective April 1, 1940. Plaintiffs’ case is plagued by more than one paradox. We are unable to find in defendants’ land grant agreements of 1934, the correspondence respecting the changes that were made in 1934, or the explanation of the reason for the changes, any basis to declare that the parties to the agreement intended that the land grant rates therein contracted for should become joint rates. This Court has no power to alter the contracts between the Government and the defendants or read into them something that is not there and was not intended to be there. In interpreting the land grant agreements of defendants to provide that the defendants would absorb a portion of the land grant deductions accruing on account of land grant mileage in the southwestern territory, plaintiffs are and were in error. In aid of their position that the equalization agreements of 1934 converted land grant rates therein provided for into joint rates, the plaintiffs direct attention to “the practices” of the defendants in determining land grant rates. Plaintiffs state the “practices” as follows: “1. They first ascertain the lowest land grant rate from origin to destination of the shipment. “2. They then apply that rate on such shipment moving over the equalizing or competing route from point of origin to point of destination, and thereafter collect charges based thereon. “The practice of the defendants in so ascertaining and in so applying the land grant rates on shipments moving from point of origin to point of desination via competing or equalizing routes, as specifically authorized in their equalization agreements on file with the Government, and, thereafter collecting from the Government charges based on land grant rates so ascertained and applied, makes such land grant rates joint rates from point of origin to point of destination of the shipment to the same extent that the commercial rates, which the said land grant rates displace, are joint rates!” We are unable to reach the conclusion urged by the plaintiffs. The manner of ascertaining land grant rates is not a matter of choice with any carrier, party to a land grant agreement. Land grant rates are determined by the destination carrier, and this carrier divides the revenue collected for the total carriage between the participating carriers. Land grant rates are not only a matter of dispute as to division, but their calculation is so intricate as to lead to frequent disputes and errors as to their calculation. These errors are frankly confessed by all parties concerned. Because the governing routes are subject to change whenever the Government can figure out a cheaper route by inclusion of more land grant mileage, it frequently happens that the net land grant rate is never in fact known until the Government makes its computations, and this may happen long after the shipment moves. Of necessity the destination or collecting carrier, on receipt of the revenue derived from a land grant shipment (competitive or controlling) must divide, allocate, or separate the total amount of revenue received into the parts due the carriers over whose line the movement passed. The War Department, by circular, specifically directs the method by which a land grant rate shall be ascertained. Under direction of the War Department in arriving at the land grant rate, the first step is to divide the through rate by the commercial division (now Joint Division Sheet No. 200-A) for the purpose of determining the amount of the through rate due the respective carriers. After this is done, on mandate of the War Department, the land grant deductions are made on account of the land grant mileage in the respective territory. Having thus arrived at the net rate after land grant deductions have been made, the respective balances or nets are lumped together in one sum and the revenue sent to the destination or collecting carrier for distribution to the carriers entitled thereto because of their part in the carriage of the Government shipment. This method of making land grant deductions in and of itself lends support to the defendants’ method of making division of land grant rates on the territorial basis, or the way they are figured by Government regulation, as opposed to the plaintiffs’ method of making divisions according to the commercial percentage basis. This procedure, the same under all land grant agreements, evidences the fact that the terms of the land grant agreement have nothing to do with the mechanics of computing and distributing the land grant rate. The agreements may determine what land grant mileage will be equalized, but having done that, the net land grant rate is ascertained as directed by the War Department and the revenue sent to the destination carrier for distribution. The change by defendants in their land grant agreements, effective January 1, 1944, wherein they specifically declared that they would participate in land grant deductions only for land grant mileage within the Central Freight Association territory, did not change or affect the method of either ascertaining, collecting, or distributing land grant rates from what it was prior thereto. Conceding, without deciding (because it is not necessary to a decision of this case) that Joint Division Sheet 200-A is a contract between the parties thereto for the division of “all-rail joint class and commodity rates between points in Official Classification Territory and points in Southwestern Territory,” was it the purpose and understanding of the parties to that instrument that land grant rates should be considered “joint rates” as that term is used in the Division Sheet, and their division controlled by the Division Sheet? Much of the record in this case goes to whether the division of land grant rates according to the formulae of Division Sheet 200-A would be to the advantage or convenience of plaintiffs and defendants. This is beside the point. If the parties made a contract by Division Sheet No. 200-A for the division of “all rail joint class * * * rates,” and intended that land grant rates be classed as joint rates and included therein, it should be enforced, whether it is an advantageous or convenient contract for one or more of the parties, or not. On the other hand, it is not for this Court to rewrite or make a contract for the parties, regardless of how desirable settlement of their differences by that means may be. The cause or force behind the adoption of Division Sheet No. 200-A and the manner of its formation are not controverted facts according to the record. Those facts are material on the instant question. Prior to 1928, the eastern and western lines each made local rates to East St. Louis. (By agreement they made some joint rates.) In settlement or division by the collecting carrier, the lines received their local rates to East St. Louis. During this period, the burden of land grant rates, actual and competitive, was carried by the carriers in their respective territories, on a territorial basis, in the same manner as the defendants now make division and in this action assert division of all land grant rates should be made. In 1928, the Interstate Commerce Commission established joint rates between the eastern and western lines. On order of the Commission, the carriers substituted the joint rates, instead of the combination of locals for such traffic. Following the order of the Commission in 1928, disagreement arose between the eastern and western carriers, including plaintiffs and defendants, as to division of the joint rates prescribed by the' Commission. The parties being unable to agree upon a division, in 1932 an action was commenced before the Interstate Commerce Commission (under Section 15(6) of the Interstate Commerce Act, 49 U.S.C.A. § 15 (6)) to have that body fix the percentages or divisions of the joint rates for traffic moving between points in the respective eastern and western territories. This proceeding was before the Commission for approximately eight years. Plaintiffs and defendants were parties to that proceeding. The Commission issued two orders on the subject. As a result of the first order, Joint Division Sheet 157 (Exhibit Z-3) was issued, effective September 22, 1936. Effective as of April 1, 1940, the Interstate Commerce Commission issued its final order on the division of joint rates by carriers between eastern and western territories. The Commission’s final order establishing divisions of joint rates provided: “ * * * that the complainants and defendants in said proceedings, according as they participate in the transportation, be, and they are hereby, notified and required to establish on or before March 1, 1940, and thereafter apply divisions of joint all-rail interstate rates between Official Classification territory and Southwestern territory, etc. * * * ” The order of the Commission had no reference to Land Grant Bates. Under the law and the record in this case, the order of the Commission “that the complainants and defendants * * * are * * * required to establish *„ * * and apply * * * divisions of joint all-rail interstate rates between Official * * * territory, and Southwestern territory * * * ” did not apply to land grant rates. First, because the Interstate Commerce Commission has no jurisdiction over land grant rates as will be later discussed more in detail, and second, the subject of land grant •rates was not before the Commission in the case in which it made the order above referred to and it had no basis to make an order for the division of land grant rates. With particular reference to the paragraph of the order above quoted, the carriers, plaintiffs and defendants to this action, with other carriers, through their authorized representatives, held conferences for the purpose of interpreting and agreeing upon the meaning and application of the order of the Interstate Commerce Commission establishing the division of joint rates. There was disagreement between them on many points. Some of their differences never were settled, but as a result of those meetings Joint Division Sheet No. 200-A was promulgated. The formation of this division sheet was desirable, if not necessary to make available to the employes of the carriers the order of the Commission as to division of rates in a practical form, rather than placing upon such employes the burden of interpreting and applying the Commission’s order each time a division of rates was called for. While the Joint Division Sheet No. 200-A contains the language that it is “Issued as a result” of the Commission’s orders, it was in fact issued in compliance with, and with rare exception (and then by agreement of the parties to it) in accord with the Commission’s order. The order of the Interstate Commerce Commission establishing division of joint rates is referred to in the complaint. In one of the early proceedings in this case, counsel for the plaintiffs referred to this portion of its pleadings as follows: “It was pled as a matter of inducement, so that the Court would understand the controversy, and it might — the order of that administrative body — throw some light on the intent and the purposes of the parties when they entered into this contract" Recognizing that it is Division Sheet No. 200-A which the plaintiffs rely upon as “this contract,” for division of land grant rates between plaintiffs and defendants, we think it well to bear in mind the legal principles which govern a contract of this character— “Whether the contract was actually signed by the receivers was quite immaterial, so long as the terms of the contract were agreed upon and understood between the parties.” Girard Life Insurance Co. v. Cooper, 1896, 162 U.S. 529, loc. cit. 543, 16 S.Ct. 879, 884, 40 L.Ed. 1062. The plaintiffs’ position that Joint Division Sheet No. 200-A controls the division of land grant rates is based primarily upon the claim asserted by them that land grant rates are joint rates and therefore covered by the express terms of the contract. In their brief plaintiffs make the following assertion: “ * * * it was the purpose of all lines represented at the conferences heretofore referred to, to agree that whatever division sheet might be published, should provide for division of the revenue on all traffic of whatever kind and description, moving on joint rates between the Southwest and Official Territory. “If, therefore, Division Sheet 200-A, in conformity with the wishes and desires and intentions of all lines involved, does provide for division of the revenue on all traffic moving under joint rates between the territories involved, it follows that it must provide for division of the revenue derived from the so-called land grant traffic when that traffic moves on joint rates between such territories, when such traffic moves over equalized routes.” (Page 73, Plaintiffs’ brief) Are land grant rates joint rates as that term is used in Joint Division Sheet 200-A? We understand it to be a basic rule of interpreting contracts, that where there is a dispute as to the meaning of the terms used, and the subject matter of the contract relates to a particular industry, “that meaning will be given to it which the context in which it is found, the business to which it relates, the circumstances under which it is used, show, in the light of the principal apparent purpose of the parties, that it was intended to have.” Cocke v. Vacuum Oil Co., 5 Cir., 1933, 63 F.2d 406, loc. cit. 407. The interpretation placed upon the term “joint rates” by the Interstate Commerce Commission should be persuasive because of the connection between that body and the railroad industry and also that it is by its order that rail rates (not including land grant rates) are given effect in general. The term “joint rates” as used in the Interstate Commerce Act and decisions, orders, and rules of the Interstate Commerce Commission has no reference or application to land grant rates. Section 1(4) of the Interstate Commerce Act, 49 U.S. C.A. § 1(4), provides: “It shall be the duty of every common carrier subject to this part to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; * * *. It shall be the duty of every such common carrier establishing through routes to provide reasonable facilities for operating such routes and to make reasonable rules and regulations with re>spect to their operation, * * *; and in case of joint rates, fares, or charges, to establish just, reasonable, and equitable divisions thereof, which shall not unduly prefer or prejudice any of such-participating carriers.” If there were any doubt about what the term “joint rates” as used in the foregoing section of the Interstate Commerce Act relates to, that doubt cannot remain when the section is read in connection with Section 6(1) of the Act, 49 U.S.C.A. § 6(1). “That every common carrier subject to the provisions of this part shall file with the commission created by this part and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. * * * The schedules printed as aforesaid by any * * Land grant rates are not filed “with the Commission” and no requirement of the Act above referred to has ever been applied, nor do we understand the parties hereto are contending it should be applied to land grant rates. Section 6(3) of the Act provides: “No change shall be made in the rates, ■ fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this Section, except after thirty days’ notice to the Commission and to the public published as aforesaid, which * * * and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection * * Neither the carriers nor the Commission have ever held that this section applies to land grant rates. The Commission is not given notice of the making of land grant equalization agreements nor their cancellation, nor changes from time to time. Nor are such changes shown by printing new schedules. Section 6(4) of the Act reads as follows: "The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the commission such evidence of concurrence therein * * Land grant agreements are not joint but individual contracts between the carrier on the one hand and the Government on the other. They are not, in any case, made jointly by two or more carriers. Note Section 15(1) of the Act: “That whenever, after full hearing, upon a complaint made as provided in section 13 of this part, or after full hearing under an order for investigation and hearing made by the commission on its own initiative, either in extension of any pending complaint or without any complaint whatever, the commission shall be of the opinion that any individual or joint rate, fare, or charge whatsoever demanded, charged, or collected by any common carrier or carriers subject to this part for the transportation of persons or property, as defined in the first section of this part, or that any individual or joint classification, regulation, or practice whatsoever of such carrier or carriers subject to the provisions of this part, is or will be unjust or unreasonable * * * the commission is authorized and empowered to determine and prescribe what will be the just and reasonable individual or joint rate, fare, or charge, or rates, fares, or charges, to be thereafter observed in such case, * * The Interstate Commerce Commission has no power, and has never claimed any, to establish or regulate land grant equalization net rates. Section 15(6) is the authority upon which the Commission made its order prescribing divisions of joint rates between the parties to this case, effective April 1, 1940. “Whenever, after full hearing upon complaint or upon its own initiative, the commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable, or unduly preferential or prejudicial as between the carriers parties thereto (whether agreed upon by such carriers, or any of them, or otherwise established), the commission shall by order prescribe the-just, reasonable, and equitable divisions thereof to be received by the several carriers, and in cases where the joint rate, fare, or charge was established pursuant to a finding or order of the commission and the divisions thereof are found by it to have been unjust, unreasonable, or inequitable, or unduly preferential or prejudicial, the commission may also by order determine what (for the period subsequent to the filing of the complaint or petition or the making of the order of investigation) would have been the just, reasonable, and equitable divisions thereof to be received by the several carriers, and require adjustment to be made in accordance therewith.” Land grant rates were not before the Commission in any particular in the Division case. This the parties agree upon. It made no order for division of land grant rates. This the parties agree upon. Further references to the Interstate Commerce Act could be made ad infinitum, but we deem it too plain for argument that the term “joint rates” as used throughout the Interstate Commerce Act has no reference to rates derived through land grant deductions and that nothing contained in the Act indicates that the term “joint rates” includes net land grant rates. Decisions of the Interstate Commerce Commission leave no room for doubt that it neither exercises nor claims the right to exercise jurisdiction over land grant rates, and that land grant rates are not joint rates as that term is understood and used by the Commission. In United States v. Southern Pacific Co., 25 I.C.C. 255 (1912), the Commission, in passing upon the reasonableness of reduced rates to the Government, said at page 258: “The Commission has held that carriers, either by contract or bid or other arrangement with the War Department, may lawfully make special rates or fares for the movement of federal troops, when moved under orders and at the expense of the United States Government, and that the rates or fares so made need not be posted or filed with the Commission In United States of America v. Union Pacific Railroad Co., 28 I.C.C. 518 (1913) the Commission said: “In so far as the laws administered by this Commission are concerned, the right of carriers to transport government property free or at reduced rates is elective and not mandatory. The carriers may, and frequently do, avail of this right and without tariff authorisation.” (page 524) The conference rulings of the Interstate Commerce Commission (while no longer in effect) are to the same effect. Conference Ruling No. 33, issued on February 3, 1908: “Reduced Rate Transportation for Federal State and Municipal Governments. Under Section 22 of the Act to regulate commerce, carriers may grant reduced rates for the transportation of property for the United States or for state or municipal governments, under arrangements made directly with such government and in which no contractor or other third person intervenes, without filing or posting the schedule of such rates with the Commission.” Conference Ruling No. 36, issued on February 4, 1908: “Rates on Shipments for the Federal Government. — If title to property, such as postal cards, passes to the Government at the point of manufacture, the carrier may agree upon a rate to be applied for transporting it for the government to another point, without filing a tariff with the Commission. But if the manufacturer under his contract is required to deliver to the government at such other point, the transportation must be under the published tariff rate. In other words, if the shipment is made directly by the government, this rate may be fixed by the carrier without posting and filing the tariff, but not otherwise.” Conference Ruling No. 208(e), issued October 12, 1906: “(e) Section 22 of the act authorizes carriers to grant free or reduced-rate transportation of property for the United States, state, or municipal governments, or for charitable purposes or for exhibitions at fairs or expositions. It also authorizes free or reduced-fare transportation of certain specified persons. This special provision and the words ‘reduced rates’ are construed to be special authority for carriers to depart from established tariff or fares; and for such transportation as is provided for in said section 22 it is not necessary for carriers to provide tariffs or observe tariff rates or fares and regulations, etc.” Tariff Circular No. 28 of the I.C.C. defines “joint rates” as follows: “The term ‘joint rate’, as used herein, is construed to mean a rate that extends over the lines of two or more carriers and that is made by arrangement or agreement between such carriers and evidenced by concurrence or power of attorney. “ ‘Joint tariffs’ are those which contain ‘joint rates.’” Our attention has not been directed to any provision of the Interstate Commerce Act, or decision, order or rule of the Interstate Commerce Commission, wherein land grant rates in any manner or form have ever been referred to as joint rates, or any language used from which it would appear by the most liberal interpretation that the term joint rates as used in the Act or by the Commission included land grant rates, either actual or competitive. We believe the Interstate Commerce Act and the rulings of the Commission are subject to but one interpretation in this respect, and that is that a joint rate is a rate contained in a joint tariff by virtue of an arrangement or agreement between two or more carriers, evidenced in the manner provided by the Commission. Land grant rates, under equalization agreements, appear in no joint tariff and are not made by “arrangement or agreement” between “two or more carriers,” but solely by agreement between individual carriers and the Government. Some of the plaintiffs’ witnesses testified that they considered land grant rates joint rates. We do not consider this evidence convincing. It did not show an understanding and agreement between the parties that the term “joint rate” as used in Joint Division Sheet No. 200-A was intended to include land grant rates, but rattu er as evidencing a conclusion of the witnesses who so testified, based on the assumption that because the collecting carrier made a division or allocation of the rates collected for land grant rate shipments for the respective lines, that such land grant rates were joint rates in the sense that they were divided and remitted by the collecting carrier. We have expressed our views on this phase of the case. More convincing, and of probative value as to the meaning of the term “joint rates,” was the testimony of Mr. Burgess. He is Chairman of the Traffic Executive Association of Eastern Territory and is a member of a committee of three set up at the request of the Government as the agency through which the carriers would speak and act in making Section 22 contracts with the Government. His testimony is convincing and no other is more detailed and reasonable in explanation of the meaning of the term “joint rates.” “Because that term (joint rate) is a term of very well understood and recognized significance. I think you know that in the railroad industry that when we speak of the term joint rate, we mean something particular, we mean something that has definite earmarks, something that has a significance. It is well understood and professionally used and known in the whole railroad industry. It means the type of joint charge or rate that the Commission referred to in this Tariff Circular that has been mentioned several times here in the evidence. It means a charge that must be filed with the Interstate Commerce Commission." “A joint rate, as I say, means, as it is well understood in the industry, a rate that is filed with the Commission — Interstate Commerce Commission, a rate that is published in a tariff which is filed; it means a rate that has to be made by an agent acting under a very definitely prescribed form of power of attorney which the Commission has set down; it means a rate that has to be concurred by all the parties to it, in a very formal and explicitly documentary manner; the forms of concurrence and forms of powers of attorney are all spelled out by the Commission; it means a rate that is open to the public; it cannot be made for one shipper only, like these Section 22 rates are. Nobody can use the Section 22 rate but the Government, and it would be a criminal offense to make a joint rate with the theory that it applied for the purpose of one shipper only. A joint rate cannot be made effective except upon thirty days’ notice to the public, unless the Commission for any cause shortens that time.” Q. “You are talking about tariff regulations.” A. “I am talking about joint rates as the term is known and used in railroad circles.” Mr. Wilson, Assistant Freight Traffic Manager for the plaintiff Missouri Pacific Railroad, defined a “joint rate”: “Well, a joint rate is a through single-unit rate that is applied over two or more lines under proper concurrence or agreement or practice of the two lines.” Q. “Is it a one-factor rate in dollars and cents, or one dollar, that two or more lines agree to charge, and then they divide the one dollar among themselves on an agreed amount, is that a joint rate?” As to the term “joint land grant rate” this same witness testified: Q. “In paragraph (e) there, I notice you used the term ‘joint land-grant rate.’ Can you refer me to any instance where that term appears in writing, except something possibly that has been written by your counsel ? A. “Why, I don’t know that I could.” Q.