#### LOUISVILLE & NASHVILLE RAILROAD COMPANY v. THE UNITED STATES.1

[No. 33290.

Decided December 1, 1919.]

*On the Proofs.*

*Transportation; land-grant deductions.*— Where a railroad company presented its bill for services to the Government with deductions for land grant, and no claim was made that the charge for transportation was not subject to such deductions, and the amount thereof was received without protest, suit can not be maintained for an additional sum by reason of such deductions. *Baltimore <& Ohio R. R. Co. Case.*52 G. Cls., 468, and *Oregon-Washington R. R. & Nav. Co. Case,*53 C. Cls., 131, followed.

“ *Troops of the United States.”*— Officers and enlisted men of the Navy, Marine Corps, and Coast Guard; officers and enlisted men of the Naval Reserve and Naval Auxiliary Service in time of war; and officers and enlisted men of the Naval Militia in the actual service of the United States are “ troops of the United States ” within the meaning of the land-grant acts.

*The Reporter's*statement of the case:

*Mr. Benjamin Garter*for the plaintiff.

*Mr. Horace S.*Whitman, with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendants.

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

I. The plaintiff is a corporation organized under the laws of the State of Kentucky, operating a system of railroads in the States of Kentucky, Indiana, Illinois, Virginia, Tennessee, Georgia, Alabama, Florida, Mississippi, and Louisiana. Two of plaintiff’s lines of railroad were built with the aid of lands granted to divers predecessors in title to plaintiff by acts of Congress passed in the years 1856, 1857, 1869, 1871, 1875, and 1876. The acts of Congress granting said lands, which aided the construction of said two lines of railroad, each contained a provision as follows, to wit: “ That the railroads to be built by such aid should be and *46remain public highways for the use of the Government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States.”

II. Under a decision of the Supreme Court of the United States it was held that railroad companies were entitled to be paid for the use of their equipment while transporting property and troops of the United States; and the Army appropriation acts during the periods covering the transportation involved in this suit provided that the land-grant roads were to receive only 50 per cent of the regular tariff rates open to the public at large; and by agreements between the railroad companies and the United States, in effect before and at the times hereinafter mentioned, the rates of railroad lines not land aided applying to property and troops of the United States had been equalized with the lowest rates accruing on any land aided lines which were feasible and competing routes between the same terminal points.

III. During the period from June 1, 1910, until January 1, 1918, the plaintiff transported over its lines of railroad, upon transportation requests issued by the Navy Department of the United States, and by the Treasury Department of the United States, certain persons belonging to the following classes, to wit:

1. Enlisted men of the Navy and Marine Corps.

2. Officers of the Navy and Marine Corps.

8.Discharged enlisted men of the Navy.

4. Applicants for enlistment in the Navy and Marine Corps.

5. Men in the Naval Reserve.

6: Men in the Naval Militia.

7. Men in the Naval Auxiliary Service.

8. Civil employees of the Navy Department.

9. Police officer.

10. Coast Guards.

For all of the transportation here involved (except the Coast Guard) bills were rendered by the plaintiff company at land-grant rates. They were presented at divers times between June 1, 1910, and January 1, 1918, and numbered *47approximately 175. A portion thereof, about 34 in number, were presented to and paid by disbursing officers, and the remainder were presented to the proper auditor for direct settlement. All were upon forms prescribed for use in making claims for transportation subject to land-grant deduction and the claim as to each item stated the full commercial rate, the amount of land-grant deduction, and the “ amount claimed,” the latter amount being arrived at by subtracting the land-grant deduction from the full commercial rate. They were all certified by the plaintiff company as “ correct and just” and were paid in the amounts claimed except that in a few instances the auditor made minor corrections as to the amount of land grant and corresponding deductions. The payments were all accepted; there was then no contention that the transportation involved was not subject to land-grant rates; there was no protest against the settlements on that ground, and there was no protest at all except in a few instances as to which it was contended that land-grant rates were not properly to be applied as against party rate and mileage transportation. It had been the uniform practice of the railroad companies, plaintiff included, for many years to present their claims for classes of transportation here involved at land-grant rates.

For the Coast Guard transportation here involved the plaintiff presented its claims on the prescribed form for transportation of passengers “no land grant involved,” and made its claims at full commercial rates, from which the auditor made land-grant deductions when involved and to the extent thereof disallowed the claims and payment was made accordingly. It is not shown that plaintiff protested settlement at land-grant rates.

IV. The difference between the amount so paid the plaintiff for such transportation at land-grant fares and the tariff rate for the public without land-grant deductions was $6,521.04, the difference with respect to each of the several classes of persons so transported being as follows:

1. Enlisted men of the Navy and Marine Corps_$4, 098.06

2. Officers of the Navy and Marine Corps_ 36. 47

3. Discharged enlisted men of the Navy_ 14. 83

*484. Applicants for enlistment in the Navy and Marine Corps_$1,654.23

5. Men in the Naval Reserve_ 50. 08

6. Men in the Naval Militia_ 280. 80

7. Men in the Naval Auxiliary Service_ 15. 64

8. Civilian employees of the Navy Department_ 116. 28

9. Police officer_ 1. 95

10.Coast Guards_ 252. 70

Y. At the time the plaintiff transported the men of the Naval Reserve, the Naval Auxiliary service and the Naval Militia, the United States Government was at war with Germany, a state of war with that country having been declared by Congress.

1

 Appealed.

MEMORANDUM BT THE COURT.

As to all the items of the claim (except that for transportation of the Coast Guard) the court decides that the principles announced in *Baltimore & Ohio R. R. Co., 52*C. Cls., 468, and *Oregon-Washington Railroad & Navigation Co.,*54 C. Cls., 131, are applicable. The plaintiff presented its bills for services to the Government’s accounting officers or disbursing officers, and these bills were paid as rendered, with some corrections not material here. The plaintiff’s bills made the land-grant deduction and made no claim that the charge for transportation was not subject to such deduction. It received the amount of its bills as rendered without protest, and under the cases cited above, where the question is fully discussed, the court will not disturb the settlement.

As to the claim for transporting the Coast Guard a different question arises, because the plaintiff rendered its bills at full commercial rates without land-grant deductions, and the deductions were made by the accounting officers and the plaintiff paid accordingly. It now claims the amount of the deductions so made.

Aside from the question above mentioned, the right of the plaintiff to recover depends on the construction to be given the phrase “ troops of the United States ” in the land-grant acts. Does the phrase mean that under the land-grant acts the railroads are only obliged to transport the land forces in the service of the United States, or does it mean that the *49railroads are obliged to transport all the military forces of the United States, whether they serve on land or water, at land-grant rates established and agreed upon by the parties ?

This court in the *Alabama Great Southern R. R.*Case, 49 C. Cls., 522, where the question was whether the National Guard were troops of the United States, said, p. 537:

> “ The meaning of the act under which the claimant must transport troops is not to be restricted to the Eegular Army, nor can it be extended to include the National Guard when not in the service of the United States.”

In the case of the *Union Pacific Railroad*Company, 52 C. Cls., 226 (which was affirmed by the Supreme Court of the United States, 249 U. S. 354), a case in which the court was construing the meaning of the phrase “ troops of the United States,” this court said:

> “We think that the general rule applicable to all of these cases is that, in order to come within the provisions of the land-grant act, the persons transported should be a part of the military organization of the Uiiited States, and may in certain cases include the Naval Establishment, which, however, is not decided.” (P. 223.)

It goes without saying that the Navy and the Marine Corps are parts of the military organization of the country. The Coast Guard is made “ a part of the military forces of the United States ” by the act of January 28, 1915, 38 Stat., 800. The transportation of the Coast Guard here involved was subsequent to that act.

If the claims did not come within the principle of the two cases first herein cited, this court would be disposed to hold that the following classes for which claims are made— namely, discharged enlisted men of the Navy, applicants for enlistments in the Navy and Marine Corps, civilian employees of the Navy Department, and police officers — are not “ troops of the United States.”

A majority of the court is of opinion that the term “troops” includes enlisted men of the Navy and Marine Corps, officers of the Navy and Marine Corps, Coast Guard, and also men in the Naval Eeserve and Naval Militia and Naval Auxiliary Service in time of war. As to the men in *50the Naval Reserve and Naval Auxiliary Service, it appears that at the time the transportation service was rendered by the plaintiff the country was at Avar and that these men were in the service of the United States (39 Stat., 587). The Naval 'Militia transported was in the actual service of the United States at the time of its transportation.

The petition is dismissed.