#### LOUISVILLE & NASHVILLE RAILROAD COMPANY* v. THE UNITED STATES.

[No. 31277.

Decided February 26, 1917.]

*On the Proofs.*

*Army; transportation; contract rate.*— Where a railroad agrees to transport certain troops oí the United States at a “ contract special rate ” and thereafter submits a claim for less than the-contract rate where it might have claimed a greater amount, and was paid at a rate higher than the contract rate, less a land-grant deduction, it can not now open the account for the purpose of applying a different rate, but under the evidence adduced it is entitled to recover the difference between the-rate billed by it and the amount deducted for land grant.

*260*Same.*— After plaintiff accepts transportation requests calling for a given rate, the furnishing of the transportation and the rendering of bills at that rate, it is too late to raise any question under a theory that the rate was only available when payment was made in cash.

*Stipulations.*— Where in a complicated matter the parties attempt to stipulate the facts, and there exists a failure to point out specifically in what respect the computation of the accounting officers was erroneous, the court will assume that the incorrectness of the computation as made by the accounting officers has not been satisfactorily shown.

*Alabama Great Southern Railroad, Co.*v. *United States,*49 C. Cls., 522, followed.

*The Reporter’s*statement of the case:

*Messrs. Benjamin*Garter, *Philip M.*Ashford, and *Charles H. Bates*for the plaintiff. *Mr. F. Garter Pope*was on the briefs.

Since the Chicago, Burlington & Quincy Railroad Co.’s case was decided it has been held, even for the purpose of the penal clauses of the interstate-commerce law, that when one shipper gives to a railroad company four-months notes, *hearing*interest, compensation so accepted is “less or different ” from that which is paid at the same (tariff) rates by other shippers who are required to make settlement at the end of each month *(United States*v. *Roehvng Valley Ry.*Go., 194 Fed. Rep., 234).

It is true that since 1910 the party-rate tariffs of claimant and the other railroad companies have been applicable by their terms to all groups of passengers, of the minimum numbers prescribed, traveling at private expenses and paying cash in advance, have not been restricted — that is to say, to theatrical or sporting parties. Thus they are made to conform with rulings of the Interstate Commerce Commission, that all persons traveling on private account who receive substantially the same service from the railroads under substantially the same conditions should pay the same rates. It is true to this day, however, as it was when the Chicago, Burlington & Quincy Railroad Co.’s case was considered *261and decided, that no tribunal has ever ruled that the Government, which obtains transportation in a peculiar way and which alone withholds payment for months, and sometimes years, after the service is received can claim the special rates that the railroads offer to some private individuals traveling in an exceptional way.

Where the full commercial rate for individual passengers is payable by persons traveling at their own expense, the Government, for the transportation of each soldier, is entitled, by reason of a grant of land which aided the construction of the line whereon the transportaron was performed, or of some others with which the rates of that line are equalized by agreement, to an abatement of 50 per cent of that rate. The determination of the land-grant deductions (sometimes affecting only a fractional part of the route traveled) is a task of divers complications and prolific of disputes between the accounting officers of the Government and the railroad companies — disputes which often run for long-periods of time. In the particular matter now under discussion the land-grant question of itself could have sufficed at this writing to stay payment of the railroad company’s bills for five years. Would any court say that the Government, which alone can raise such questions against the railroad companies and which alone does not pay interest on its debts, is on all fours with a group of private passengers who pay in advance the exact sum named by the railroad tariffs ?

But to consider these particular land-grant abatements on their merits, if the Government were entitled to the *full*rates of the special commercial tariffs applying to parties of ten or more, it would be in virtue of the rule established by the War Department, that the “military ” (usually land-grant) rate must not be more than the commercial rate, because, in other words, the ordinary commercial rate, after the proper land-grant shrinkage, was more than this special commercial rate. Thus, in testing the special commercial rate by the military rate the Government would already have had the benefit of the land-grant obligation of the railroad; and in the special rate it would have obtained some additional benefit. Surely it can not make the railroad *262company pay twice and something more for the land grant, and so accept for the land-aided mileage one-half of the special commercial rate.

The compensation due to claimants for these movements, indeed for every movement included in the complaint, is that fixed by the railroad companies in their agreement of November, 1898, denominated the “Washington adjust- , merit.” To all intents and purposes that scheme of rates constitutes a contract between the Government and the railroad companies. It dealt solely with transportation for Government account; it was promptly communicated by the railroad authorities to the War Department, and it has since been applied by that department as superseding the rates (generally higher) which had previously been paid for Army transportation.

The basic rate applied by the Government’s officers (from which, besides, a land-grant deduction was made) is that of a commercial pai'ty-rate tariff promulgated by a competing railroad company and to which the claimant never in any • way became a party. This is precisely the situation of which, on an appeal of the Central of Georgia Railway Co., the Comptroller of the Treasury treated in his communication of December 4, 1908, to Lieut. Col. Sam R. Jones, Chief Quartermaster, at Atlanta, Ga., which is a part of the Treasury Department’s report filed in this case. For the transportation there in question a cheaper rate had been published by some other lines and the Central of Georgia, never having agreed to equalize with that, declined to accept it. The comptroller said:

“ The cheaper routes are available to the Government and the administrative officers have the privilege of using them. If the more expensive routes are used, the amounts earned thereby must be allowed by the accounting officers.”

Why the Treasury officials did not apply this rule to the transaction now under consideration we are not informed. It is strictly applicable, and,, we submit, it is unanswerable. No different rule can be declared unless a contract is to be made for the parties which they did not see fit to make for themselves.

*263*Messrs. Horace 8. Whitman*and *William F. Noms,*with whom was *Mr. Assistant Attorney General Huston Thomp*son,, for the defendants.

The following are the facts as found by the court:

I. The claimant is a corporation organized under the laws of the State of Kentucky owning and operating a system of railroads in that and other States of the United States. For the period covered by the transactions involved in this case, to wit, from July, 1908, to September, 1910, two of claimant’s lines of railroad, extending, respectively, from Decatur, in the State of Alabama, to Pensacola, in the State of Florida, and from Pensacola to Eiver Junction, also in the State of Florida, were built with aid of lands granted to divers predecessors in title to petitioner by various acts of Congress, commonly known as land-grant acts. No other parts of claimant’s lines were constructed by aid of any grant of lands by the United States.

II. On the 14th day of September, 1909, an agreement was entered into between Capt. Stanley H. Ford, quartermaster, United States Army, and the plaintiff herein, whereby the latter agreed to transport 17 enlisted men of the United States Army from St. Louis, Mo., to Mobile, Ala., at a rate of $11.75 per man. It was provided in said agreement that—

*“*The above rates are net cash and not subject to further deduction, unless it be subsequently found that they are in excess of the regular tariff rates, less land-grant and other lawful deductions, to which the Government is entitled; then the lower rate will govern in settlement.”

Transportation request dated September 14, 1909, was issued by the Quartermaster General of the United States Army, addressed to plaintiff company, for the transportation of a sergeant and 16 others from St. Louis to Mobile at contract special rate. The plaintiff accepted the request and transported between the points designated the seventeen enlisted men of the United States Army. Thereafter the plaintiff railroad company made claim for the service in question at the rate of $11,468 per man, a rate known as the Washington adjustment, one of the conditions of which was that it was not subject to deduction on account of land grant. The ac*264counting officers in making settlement allowed for said transportation at the rate of $9,878 per man, and the plaintiff was paid, over its protest, $35.53 less than it then claimed and now claims. The settlement was made in accordance with party rates, less land-grant deduction between the point of origin and destination, by the Mobile & Ohio Bailroad Co., a competing land-grant carrier, and was on the basis of a party rate of $10.10 from Cairo to Mobile, including Cairo Bridge arbitrary of 25 cents, and a net fare from St. Louis to Cairo of $2,638, including St. Louis Bridge arbitrary of 25 cents, a total of $12,738, from which rate thus established there was deducted $33.33 on account of land grant between Cairo and Mobile, or a total from the rate thus established of $56.61, and making a net payment of $35.53 less than that claimed. Theretofore the plaintiff had agreed with the United States that it would accept the same net cash revenue on competitive business as would accrue to lines having the longest land-grant mileage between points of origin and destination.

III. In the year 1909 the plaintiff transported five bodies of United States troops between New Orleans, in the State of Louisiana, and Pensacola, in the State of Florida, over a line which for a distance of 43 miles between Pensacola and Flomoton, in the State of Alabama, was a land-grant road.

Transportation requests for these various movements were issued, requesting this transportation at the rate of $4.90 per capita, which requests were accepted by the plaintiff and the transportation furnished, and plaintiff thereafter rendered its bills at the rate of $4.90 per capita. In settling for said transportation the accounting officers, for the proportion of the entire rate which 43 miles bore to the entire distance, deducted 50 per cent thereof on account of land grant and from the whole amount which plaintiff then claimed and now claims to be due for such transportation there was deducted on account of land grant and remains unpaid the sum of $199.09.

IV. In the years 1908 and 1910 various bodies of the troops of the State of Alabama and of the State of Florida were transported over plaintiff’s lines, and other lines connecting *265therewith, going to or returning from encampments established by the military authority of the United States for the instruction of the United States troops under authority of the act of Congress approved January 21, 1903, 37 Stat., 775. To all the said movements, except one of eight passengers between Montgomery, Ala., and Lytle, Ga., in July, 1910, the plaintiff agreed that its party-rate tariffs should apply, and its bills against the United States with respect thereto were computed at those rates. The accounting officers of the United States, in making, settlement for such transportation, adopted said party rates as the proper basis therefor, but made deductions of 50 per cent with respect to certain parts of the mileage either of the claimant’s lines over which said troops had moved, or of competing lines, because of grants of lands which had been made by the United States to aid in the construction of such parts of said routes. The total amount of such land-grant deduction on all the movements of such State troops was $3,693.66.

*

 Post, p. 299.

Per Curiam :

The facts with reference to plaintiff’s claim are sufficiently set forth in the findings and do not need repetition. With reference to the movement of 17 enlisted men from St. Louis to Mobile, referred to in Finding II, it appears that there was a contract rate, but that the plaintiff made its claim for the service rendered upon another and a different rate, which was slightly less than the contract rate. The accounting officers applied a party rate which was more than the contract rate or the charged rate, but from which a deduction was made on account of land grant and because thereof an amount was paid less by $35.53 than the amount claimed.

There is room for the conclusion, predicated on matter appearing in the record but which can not be regarded as evidence, that the plaintiff, for this movement, furnished a party ticket and a party service. Had these facts been proven we would have had a different case for consideration and determination. They were not, and if a conclusion which possibly might have been favorable to the defendant must be otherwise the fault is in the omission. We must consider the case as presented.

*266The request, in compliance with which the transportation was furnished, was for transportation at “ contract special rate.” No reason appears why the plaintiff might not have claimed payment at that rate. We are not unmindful of the possible infirmities in such contracts because of their conflict with the rights of the United States under the land-grant acts, and, in this case, we do not overlook the clause of the contract quoted in the second finding, but we do not find it necessary in this instance to discuss or construe it. The plaintiff has claimed less than the contract rate, and if it might have claimed that rate, we need not discuss the basis upon which it claimed less. It should recover the amount of the deduction therefrom.

With reference to the second movement (Finding III) the plaintiff practically concedes the correctness of the deduction made if the rates involved were available to the Government, but says “they were not, we contend, open to the Government for the reason that the Government did not pay cash.” After the acceptance of transportation requests calling for a given rate, the furnishing of the transportation and the rendering of bills at that rate it is too late to raise any question under a theory that the rate was only available when payment was made in cash.

The question presented with reference to movements referred to in Finding IV is essentially different, in that the persons there being transported were not of the Regular Army but were troops of the States named. Under the decision of this court in the *Alabama Great Southern*case, 49 C. Cls., 522, the deduction, on account of land grant, was unauthorized. It may be said with reference to a part of these movements that aside from the land-grant deduction this is a controversy between the parties as to the correctness of the computations by which the proper rate was arrived at. The parties have attempted to stipulate the facts in this case, but have failed in this respect. The court has not been furnished with the data which will enable it readily to determine whether the computation of the accounting officers or that of the plaintiff is correct. If, in a complicated matter of this kind, the plaintiff asks the court to adjust differences *267and determine tbat the computation upon which the settlement was made was erroneous, it seems to us that the plaintiff should have pointed out more specifically the respects in which that computation was erroneous and not have left the court to struggle through a mass of complicated figures in an attempt to adjust differences which counsel, after what we assume to have been an honest effort, have been unable to adjust themselves. We have therefore assumed that the incorrectness of the computation as made by the accounting officers has not been satisfactorily shown, and to it we have adhered. Upon the movements referred to in Finding IY the plaintiff is entitled to judgment for the amount deducted on account of land grant, namely, $3,693.66.

The plaintiff will have judgment in all for $3,729.19.