#### BALTIMORE & OHIO RAILROAD COMPANY v. THE UNITED STATES.

[No. 34620.

Decided October 24, 1921.]

*On the Proofs.*

*Transportation of Army haggage and impedimenta; contract and regular tariff rates.*— Where the United States has contracted in writing with a railroad company for special expedited service in the transportation of baggage and impedimenta at a specified rate, and said company had on file at the time with the Interstate Commerce Commission a tariff applicable thereto with a lower rate than that agreed upon, but no application had been made therefor by the Government, the United States is bound by the rate agreed upon in its contract to the same extent as an individual.

*385*The Reporter’s*statement of the case.

*Mr. John F. McGarron*for the plaintiff. *Mr. George E. Hamilton*was on the briefs.

*Mr. Perry W.*Howard, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

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

I. The plaintiff, the Baltimore & Ohio Eailroad Company, is a corporation organized under the laws of the State of Maryland, and operates, and at the time hereafter stated did operate, a system of railroads, which said railroads included a line running to Winchester, Va.

II. On the 12th day of July, 1913, the following contract was entered into between the Chicago, Indianapolis & Louisville Eailway Co. and a duly authorized representative of the Quartermaster Corps, U. S. Army:

“ This agreement, entered into this 12th day of July, 1913. between Major F. H. Sargent, Quartermaster Corps, United States Army, and Chicago, Indianapolis & Louisville-Eail-way Company.

“ Witnesseth: In consideration of the rates named below, the Chicago, Indianapolis & Louisville Eailway Company shall transport 11 officers and 288 enlisted men (more or less) designated as 3rd Squadron and Machine Gun Platoon, 15th Cavalry, from Fort Sheridan, Illinois, to Winchester, Virginia, together with the animals and impedimenta authorized to accompany the command.

“ The route of travel will be as follows: C. & N. W. Ey. to Chicago; C. I. & L. to Indianapolis; C. H. & D.-B. & O. S. W. to Parkersburg, West Virginia; B. & O. to Winchester, Va.

“ The train equipment shall consist of four flat cars, standard sleepers, eight tourists’ cars, two baggage cars, two freight cars, sixteen Arms palace stock cars, all of standard quality and in good sanitary condition; passenger cars to be properly watered, lighted, and heated, stock cars thoroughly cleaned, and all equipment placed at point of embarkation in time for inspection before movement; all cars to run through from starting’ point to destination on as fast time as consistent with safety.

“ In consideration of the faithful performance of this agreement, the carriers shall be paid the following rates: Eail: Officers, per capita, from Chicago, $13.25; sleeping car, *386officers, per berth, $2.25 lower; $1.80 upper; enlisted men, per berth or section, $2.25 lower, $1.80 upper; freight and animals, per 100 pounds or carload, see below.

“ The above rates are net cash and not subject to further deductions unless it is subsequently found that they are in excess of regular tariff rates less land-grant or other lawful deductions to which the Government is entitled, when the lower rate will govern in settlement, except when special passenger-train service is called for and furnished.

“Remarks: Passenger service. Ft. Sheridan to Chicago. Ill., to be paid in accordance with regular tariff. All baggage and impedimenta above 150 pounds per man to be charged for at rate of $2.90 per hundredweight.

“ Erasure of ‘ coaches ’ and substitution of ‘ flat cars,’ line 11, made before signing.

“ In witness whereof we hereunto affix our signatures.

“ F. H. SargeNt,

*“*Major, *Quartermaster*Corps, *U. S. Army.*

“ Chicago, INdiaNapolis & Louisville Ry.,

“ By FraNk J. Reed, *G. P.*A.”

Following is pasted to contract:

“ Freight and animals from Ft. Sheridan, Ill., to Winchester, v a., horses, carload, $.546 per cwt., min. 20,000 lbs., plus Arms palace horse car rental of $24.68 each, such cars having 18 stalls.

“ Wagons, carloads, $.259 per cwt., min. 20,000 lbs., for 36-foot car, subject to rule 27, official classification for cars of greater length.

“Ambulances, carloads of, $.508 per cwt., min. 11,000 lbs., for 36-foot car, subject to rule 27, official classification for cars of greater length.”

III. Under this contract the troops mentioned were moved and at the same time there was moved with the troops, in three cars, 44,121 pounds impedimenta, for the transportation of which Government bills of lading were duly issued by the receiving railroad. The service specified in the contract was furnished, and the troops and property carried to Winchester, Ya., the plaintiff company being the last carrier. Said train service covered a period from 6.30 a. m., of July 18,1913, to 9.41 a. m., of July 20,1913, inclusive.

IV. At the. time of the movement involved' there was on file with the Interstate Commerce Commission and in effect over the route which the movement traveled the following *387classification of freight, Official Classification No. 40, item 1, page 120, of which reads as follows:

“ Government freight, when moved in connection with troops and covered by Government bill of lading, will be transported on the following basis:

.“ Military camp equipage, impedimenta, and ordnance (not including baggage, live stock, or vehicles), when moved in freight-train service (C. L., mm. wt. 30,000 lbs.), fourth class'net cash.”

The fourth-class rate under the tariffs in effect on July 18, 1913, from Fort Sheridan, Ill., to Winchester, Va., was 32 cents per hundredweight.

Y. Payment for the service rendered, covering the impedimenta, wagons and horses, was made by the disbursing quartermaster, Maj. James Canby, Quartermaster Corps, in amount of $3,629.35, in conformity with the provisions of the contract agreement between the Chicago, Indianapolis & Louisville Railway and the Government, sét forth in Finding II.

Upon review of the settlement made by the quartermaster, the auditor determined the settlement erroneous on the ground that the rates named in the contract on the impedimenta exceeded the public tariff as follows:

The contract provided a rate of $2.90 per hundredweight on all impedimenta above 150 pounds free allowance per man, whereas the rating published on traffic of that character in Official Classification No. 40, above quoted, was 32 cents per hundredweight (C. L., min. wt. 30,000 lbs.), which rate he held should have been applied to the three cars of impedimenta referred to above, instead of the contract rate of $2.90 per hundredweight, used as a basis of payment by the quartermaster. The difference between the charges for impedimenta calculated at 32 cents per hundredweight (C. L., min. wt. 30,000) and at $2.90 per hundredweight is $991.51.

VI. The defendant made demand upon plaintiff for the refund of this amount. The demand was refused. The defendant thereafter, through its auditor, on the 24th day of January, 1916, deducted $991.51 from amounts found to be due the plaintiff upon bills for subsequent service Nos. 29610, 30402, 30404. 30405, 30406, and 30407. Plaintiff refused to *388accept such payment and appealed to the Comptroller of the Treasury, who, on May 17,1916, affirmed the deduction made by the auditor.

Booth, Judge,

delivered the opinion of the court.

■ The plaintiff company, in pursuance of a written agreement, furnished transportation for certain officers and enlisted men, together with camp impedimenta and animals, from Fort Sheridan, Ill., to Winchester, Va. The service required was specified in detail in the agreement, and the company met all the requirements of the contract. Payment for the service was in time, upon proper presentation of bills therefor, duly made by the disbursing quartermaster in the full amount stipulated in the written agreement. Thereafter the Auditor for the War Department, in reviewing settlements made by the disbursing quartermaster, disallowed certain sums from said allowance upon the theory that the following clause in the contract authorized the same, viz:

> “ The above rates are net cash and not subject to further deductions unless it be subsequently found that they are in excess .of regular tariff rates less land-grant or other lawful deductions to which the Government is entitled, when the lower rate will govern in settlement, except when special passenger-train service is called for and furnished.”

Subsequently the amount so disallowed was deducted from sums due the plaintiff for other and distinct transportation services in no way connected with this. The plaintiff duly protested and declined to accept the depleted payment as aforesaid.

This case differs in no essential particular from the cases of *Bush,*Receiver, v. *United States,*52 C. Cls., 199, and *Atchison, Topeka & Santa Fe R. R. Co., v. United States,*256 U. S., 205. The defendant contracted for a special expedited service, a service not usually furnished in the ordinary movements of the public or maintained in its regular train schedules. It is, of course, obvious that no express mention is made of a desire to obtain a specially expedited service, but the context of the agreement calls for such a service, a movement on a special train, made up in an unusual way. transporting freight, impedimenta, and live animals on a passen*389ger train. In fact, the whole movement, from its inception to its close, unmistakably indicates an intention upon the part of the defendant to obtain a special service by special agreement. It would result in manifest injustice to subject an express contract under the circumstances narrated to arbitrary deductions under the wording of the reservations contained in the clause relied upon. The defendant was undoubtedly entitled to the same rights and privileges as set forth in the regular tariff rates as respects transportation charges, but can it be said that this precautionary reservation can be so enlarged as to warrant an application of the regular tariff rates to a service especially contracted for, under special circumstances, and unusual in character ? Why the necessity, if such be the case, of entering into a contract with respect to the same? It must be admitted in this case that the railroad company would not have been required under regular tariff to furnish the service it did furnish. Nothing stood in the way of the defendant, if it so desired, to avail itself of the customary mode of transportation furnished to the general public under the regular tariff rates, duly published. The execution of a written contract for the service, if it rises to no greater dignity than an ordinary shipment, was a meaningless performance. What the defendant ■wanted was a special service, set forth in minute detail in the contract. That was what the defendant received, and we perceive no legal reason for denying its enforcement. As well said in the Bush, Receiver, case, *supra:*

> *“*With full knowledge, or at least charged with knowledge that there were such rates, the United States chose not to apply for them, but to enter into a written contract with the plaintiff whereby other rates were fixed. It is too late now for the United States to undertake to profit by deducting from the plaintiff’s claim the difference in the rates. It is difficult to understand why the defendant should be given any greater consideration than any other party to a contract. It will not be said that if this same contract had been made with a private individual that he could have broken it, and insisted upon a lower rate, when he had never applied for it. and never even complied with the conditions which were published to the world and which were necessary to be complied with in order that he might benefit by them. The United States is in no better • position. Indeed, when the *390United States enters into a contract they are as much bound by its terms as is an individual. *Deming’s case,*1 C. Cls., 190, 191; *Wilson’s*case, 11 id., 513, 520; *Southern Pacific Co.'s case,*28 id., *77; Lyon’s case,*30 id., 353, 360; *County of Clay*v. *Society for Savings,*104 U. S., 579, 586. We do not think that the plaintiff should suffer or lose under this contract, and it is entitled to recover the full amount sued for.”

Judgment is awarded the plaintiff in the sum of $991.51. It is so ordered.

Graham, *Judge;*Hay, *Judge;*Dowhey, *Judge;*and Camp-beIjL, *Chief Justice,*concur.