#### THE LOS ANGELES & SALT LAKE RAILROAD CO. v. THE UNITED STATES.

[No. 34087.

Decided April 26, 1920.]

*On the Proofs.*

*Transportation; contract rate.*— Where a railroad company has notified the Government of its rates for special expedited service in transporting troops and their baggage and equipment, and the Government orders such service without objection to such rates, the Government is liable for the rates so established.

*The Ref otter's*statement of the case:

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

*Mr. R. II.*Hartshorn, with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendants. *Mr. Horace S. Whitman*was on the briefs.

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

I. Plaintiff is a corporation organized and existing under the laws of the State of Utah and owns and operates, and at the times hereinafter specified owned and operated, a line of railroad extending from Salt Lake City, Utah, to the *306Bay of San Pedro, Calif., together with branch lines and extensions, over which lines and branches pffaintiff is now, and at the times hereinafter specified was, a common carrier for hire of freight and passengers, and has established tariffs for such transportation, which tariffs are duly published and filed with the Interstate Commerce Commission in accordance with law. ,

II. October 26,1916, a bill of lading, No. WQ-165, issued, providing for the transportation of 13 cars of camp equipment and impedimenta, accompanying a movement of 296 United States troops, from Nogales, Ariz., to Salt Lake City, Utah, via the Southern Pacific Railroad to Los Angeles and the Los Angeles and Salt Lake Railroad to Salt Lake City.

The original bill of lading can not be found, but the certificate of shipment furnished by Graham Parker, captain, Quartermaster Corps, shows that said freight shipment as delivered to the Southern Pacific Railroad at Nogales, Ariz., consisted of the following:

Pounds.

3 box cars of camp equipment_ 60,000

4 flat cars containing 5 wagons, escort, and 1 ambulance, weight_ 37, 000

6 stock cars containing 134 horses, weight_ 134, 000

Plaintiff, in cooperation with the other carriers mentioned, transported, in special expedited train service, said 13 cars of property from Nogales, Ariz., to Salt Lake City, Utah.

For the service rendered plaintiff submitted to the proper officer of the United States its bill, No. GF-16, for $11,995.50.

III. December 16, 1916, Government bill of lading No. WQ-234 issued, providing for the transportation of 11 cars of camp equipment and impedimenta, accompanying a movement of 136 United States troops, from Nogales, Ariz., to Salt Lake City, Utah, via the Southern Pacific Railroad to Los Angeles and the Los Angeles & Salt Lake Railroad to Salt Lake City.

Said shipment consisted, according to the bill of lading,’ of the following:

Pounds.

1 box car containing “ hay, grain, and 44 sacks artillery harness and 36 saddles in sacks,” weight-15, 250

1 box car containing 77 packages ordnance stores and 71 packages quartermaster supplies, weight-20, 000

*3071 box car — “free baggage (no weight).”

1 stock ear containing 16 horses.

1 stock car containing 16 horses.

1 flat car containing 2 guns, 2 caissons, 2 limbers, weight- 1, 000

1 fiat car containing 1 gun, 3 caissons, 4 limbers, weight-14, 000

1 flat car containing 4 caissons, 4 limbers, weight-10,000

1 flat car containing 4 caissons, 5 limbers, weight-12, 000

1 flat car containing 1 battery wagon, 1 store wagon, 1 limber, 1 escort wagon, weight-14, 000

1 flat car containing 2 escort wagons, weight- 4, 000

Special expedited train service for this movement of men and equipment was furnished. For the service rendered plaintiff submitted to the proper officer of the United States its bill, No. GF-45, for $10,148.50.

IY. February 27, 1917, Government bill of lading No. WQ-355 issued, providing for the transportation of 12 cars of camp equipment and impedimenta, accompanying a movement of 235 United States troops from Nogales, Ariz., to Salt Lake City, Utah, via the Southern Pacific Railroad to Las Angeles and the Los Angeles & Salt Lake Railroad to Salt Lake City.

Said shipment consisted, according to bill of lading, of the following:

1 box car containing 131 packages “ troop property.”

1 box car containing 137 packages “ troop property.”

1 box car containing forage.

1 box car containing 75 packages quartermaster and ordnance property.

1 flat car containing 3 wagons, escort; 1 wagon, signal kit.

1 fiat car containing 2 wagons, escort; 1 truck, Packard.

1 stock car containing 22 horses, public.

1 stock car containing 22 horses, public.

.1 stock car containing 22 horses, public.

1 stock car containing 23 horses, public.

1 stock car containing 16 horses, public, and 3 horses, private.

1 stock car containing 23 horses, public.

Said bill of lading bore the following notation on the face:

“ Expedite service requested and received. Property moved on special train with troops.”

For the service rendered plaintiff submitted to the proper officer of the United States its bill, No. GF-63, for $11,073.

Y. December 22. 1916, Government bill of lading WQ-254 issued, providing for the transportation of four cars of camp equipment and impedimenta, accompanying a movement of 49 United States troops, from Nogales, Ariz., *308to Salt Lake City, Utah, said shipment consisting of the following, as described in said bill of lading:

1 bos car containing 259 packages company property.

1 bos car containing 200 packages company property.

1 flat car containing 2 wagons, escort.

1 flat car containing 1 wagon, escort, and 1 truck motor.

Special expedited train service for this movement of men and equipment was furnished. For the service rendered plaintiff submitted to the proper officer of the United States its bill, No. GF-294, for $3,690.

VI. The charges of plaintiff’s said bills, referred to in findings II, III, IV, and V above, for the service described were computed and rendered on the basis of item 378, Pacific Freight Tariff Bureau Exception, Sheet No. 1-E, Supplements 11, 14, and 16, a copy of which item, as appearing in said tariff and the said supplements thereto, as effective on October 16, December 16, and December 22, 1916, and February 27, 1917, is attached to the stipulation herein and made a part hereof by reference.

This rate was not made after consultation with the Quartermaster General of the Army, and was at various times declared by him to be inequitable, unreasonable, and unjust, but at the time this service was requested and performed said rate was published and claimed by plaintiff and some other railroads, which fact was well known to the officials of the Government, and no objection was made to said rate at the time of this service.

VTI. The Auditor for the War Department in settling plaintiff’s said bills above referred to by settlements Nos. 30040, 30073, 28972, and 28991, respectively, disallowed the total sum of $24,035.11, and tendered payment on the basis of rates applying to commercial shipments handled in regular freight-train service.

The Comptroller of the Treasury, upon appeal taken to him, ruled that the camp equipment and impedimenta herein referred to and described in said bills of lading was properly baggage accompanying troops, and under the baggage tariffs of said plaintiff and its connecting lines the Government was entitled to one baggage car free for each 25 men transported, and the additional sum of $8,026.29 was disallowed for that reason.

*309Attached to said stipulation and made a part hereof by reference is a copy of special baggage tariff I. C. C. No. 789 of the San Pedro, Los Angeles and Salt Lake Railroad Co., with supplements 6 and 7, which tariff and supplements were duly published and effective on October 16, December 16, and December 22, 1916, and February 27, 1917; also Southern Pacific Co. circular No. 2561, I. C. C. No. 2645, with supplements 10, 11, and 12, which tariff and supplements were effective at the time of service, as indicated.

VIII. The special train service requested and performed was a special expedited service, under the exclusive direction and control of the Government officers, 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.

Geaham, Judge,

delivered the opinion of the court.

The facts as found in this case show that special expedited service was requested and performed under the exclusive direction and control of the Government officers, £he trains being run as fast as consistent with safety and having the right of way over ordinary freight trains and frequently over passenger trains; and that at the time this service was requested and performed the plaintiff and some other roads had published and claimed a special rate for such service to the defendant, which fact was well known to the officials of the Government, and no objection was made to said rate at the time of this service.

This case is controlled by the principle enunciated in the *Bush, Rec'r.*Case, 52 C. Cls., 199, 201, that where the Government contracts with reference to particular service it is bound by its contract. In the case of *Southern Pacific R. R. Co.*v. *United States,*53 C. Cls., 332, 338, the court said:

> “The rates were furnished, the defendant accepted the terms and conditions of the special contract, and formally executed it through an officer authorized so to do.”

In the case of *Yazoo da Mississippi Valley R. R. Co.*v. *United States,*54 C. Cls., 165, 168, the court said:

> “We have held, however, that where the Government contracts with reference to a particular service it is bound *310by its contract. *Bush, Rec'r,*v. *United States,*52 C. Cls., 199. In the instant case the stipulated facts show that the 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 or applicable to the public. The Government thus had notice of the rates which plaintiff would charge, and it ordered and secured 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.”

This view of this case disposes of it and renders it unnecessary to discuss or pass upon the contention of the defendant that camp equipment and impedimenta of troops are baggage, to be transported and paid for as such under the published tariffs of the Southern Pacific Eailroad Co., on whose lines this shipment originated, and the published tariffs of the plaintiff, allowing in special service one baggage car for each 2o persons or the equivalent who have purchased transportation.

Judgment should be, and is, awarded to the plaintiff company in the sum of $32,062, the amount claimed in its petition, and it is so ordered.

Hat, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.