#### YAZOO *&*MISSISSIPPI VALLEY RAILROAD COMPANY v. THE UNITED STATES.

[No. 33834.

Decided May 5, 1919.]

*On the Proofs.*

*Transportation; contract rate, when published tariff "becomes.*— The publication by a railroad of a net tariff rate for an expedited or special service covering camp equipage and impedimenta, without further deduction for land grant roads, constitutes a contract rate binding on the Government when it orders and secures the services specified by the tariff without stipulating for a different rate or objecting to the published rate as unreasonable and unjust.

*The Reporter's*statement of the case:

*Mr. Alexander BHtton*for the plaintiff. *BHtton <& Gray*were on the briefs.

*Mr. William F.*Norris, with whom was *Mr. Assistant Attorney General William L.*Frierson, for the defendants.

*166The following are the facts of the case as found by the court:

I. The plaintiff, the Yazoo & Mississippi Valley Railroad Company, is a corporation duly organized and existing under the laws of the States of Mississippi, Louisiana, and Tennessee, and owns and operates, and at the times hereinafter mentioned did own and operate as a common carrier, a system of railways in the States of Mississippi, Louisiana, and Tennessee. It is a subsidiary of the Illinois Central Railroad Company, but it is separately operated.

II. June 6, 1916, Government bill of lading No. 6119-16 issued, providing for the use of nine cars to transport certain impedimenta of the Fourth Regiment, United States Marine Corps, from San Diego, California, to New Orleans, Louisiana, via the Atchison, Topeka & Santa Fe System to Houston, Texas; the New Orleans, Texas and Mexico Railroad to Baton Rouge, Louisiana; and the Yazoo and Mississippi Valley Railroad to New Orleans.

The freight shipments consisted, according to the Government bill of lading, of the following:

Car No. 26662 32834 24577 36167 27638 25588 90957 94712 43380 Cars. Contents. 1 box car. .do. .do. .do. _do. _do. 1 flat car.. ....do. ....do. Total weight.. Tents and poles. Gasoline, drugs, oils, tents, and poles.. Cartridges (explosive). Tent and camp equipage. _do. ,....do. Motor trucks. Guns and limbers. _do. Weight. 39,000 24,200 66,440 41,540 20,060 33,920 14,740 15,940 12,260 268,200

The bill of lading bore the following indorsement made by the representative of the Government:

“ Charges based on minimum weight of 80,000 lbs. per car. Special train service requested and furnished.”

Upon the request of the duly authorized agent of the United States, and pursuant to bill of lading No. 6119, here-inbefore referred to, the plaintiff, in cooperation with the other carriers mentioned in said bill of lading, transported nine carloads (268,200 pounds) of property as prescribed in *167said bill of lading from San Diego, California, to New Orleans, Louisiana, furnishing for such “special expedited service ” a special train.

For the service rendered, plaintiff submitted to the proper officer of the United States its bill No. 5986~95 for $8,589.80, being $2.58 per 100 pounds as a net rate, without any reduction for land-grant roads on camp equipage and impedimenta, including live stock, carloads, minimum weight 30,000 pounds per car, either when accompanying troops or without troops, when handled by passenger train or expedited train service. This rate was specifically named and provided for in Supplement 2 to Transcontinental Freight Bureau Circular No. 51-A, effective March 1,1913, known to the Quartermaster General of the Army and other officers of the Government. This rate was not made after consultation with the Quartermaster General of the Army and was some time in the year 1914 declared by him to be inequitable, unreasonable, and unjust, but when this service was asked for in June, 1916, no objection was made by the officers of the Government to the rate so fixed by the plaintiff.

III. November 27, 1916, the Auditor for the Navy Department, by settlement No. 6313, disallowed $4,439.33 of the plaintiff’s bill for $8,589.80, settling for cars 26662, 32834, 36167, 27638, and 25584, or 158,820 pounds, as emigrant movables taking class “A” rates; car 96957 motor trucks, 14,470 pounds, at first-class rates, and cars 24577, 94712, and 93380, or 94,689 pounds, for cartridges, guns, and limbers at second-class rates, with land-grant deduction of the gross rates in each case. Upon appeal to the Comptroller of the Treasury the action of the auditor was affirmed by decision dated March 19, 1917, appeal 26806, and upon motion for reconsideration the Comptroller of the Treasury by decision dated April 9, 1917, not only reaffirmed his previous action but made a further deduction of $407.37 by applying class “ B ” rates to the shipment instead of class “A,” and the total, deduction from the company’s bill was $4,846.70.

IV. The order upon which the shipments were made was dated June 4, 1916, and was from H. B. Pratt, Quarter*168master of the Marine Corps, addressed to W. B. Frisbee, C. P. & T. A., as follows:

“ You are hereby instructed to order equipment necessary for movement in expedited service the Fourth Regiment, San Diego to New Orleans; Santa Fe System to Houston, thence to New Orleans; 670 men, approximately, and equipment. Also order from Pullman Co. necessary cars for this movement, including four (4) kitchen tourists’ cars.”

Government bill of lading No. 6119-16, dated June 6,1916, issued to cover the shipment, bore the following indorsement :

“ Charges based on minimum weight of 80,000 lbs. per car. Special train service requested and furnished.”

Y. The special train service contracted for and performed was a special expedited service, under the exclusive control and direction of the Government, the trains being run as fast as consistent with safety, and having the right of way over ordinary freight trains, and frequently over passenger-trains, said trains being held at certain points by the direction of the Government, which at all times had control over them.

YI. The Quartermaster Department of the Army was authorized by the Secretary of War to contract with the claimant company for the special transportation services referred to herein.

Per Curiam.

The court does not hold that a railroad company, by issuing or publishing a rate or filing a tariff, can nullify the land-grant laws. We have held, however, that where the Government contracts with reference to a particular service it is bound by its contract. *Bush, Rec’r,*v. *United*States, 52 C. Cls., 199. In the instant case the stipulated facts show that plaintiff had published the rates it would charge for the special and expedited service, which was subsequently ordered and rendered. The rates were not published to the public, and the particular service was not required by or applicable to the public. The Government thus had notice of the rates which plaintiff would charge, and it ordered and *169secured the services without stipulating for any other rates or objecting to the proposed rates. Manifestly the Government could not, and did not, expect that the special services contracted for and secured would be rendered at regular tariff rates. The bill of lading specified that the minimum weight to the car would be 30,000 pounds. We think the effect of the whole transaction was that the parties contracted with reference to said proposed rates.

Judgment for plaintiff in the sum of $4,846.10.