#### MISSOURI PACIFIC RAILROAD COMPANY v. THE UNITED STATES.

[No. 34581.

Decided June 13, 1921.]

*On the Proofs.*

*Contract; special advantages; effect on contract.*— Where the government enters into a contract with a railroad company by which it secures special rates and other benefits not applicable to the general public, it is bound by its contract, notwithstanding there are published tariffs of said railroad in effect covering similar service.

*Same; jurisdiction; classification.*— The court has jurisdiction to construe the tariffs published by railroad companies and to determine under what classification, if any, articles transported by railroads should properly be placed.

Geaham, *Judge,*specially concurring.

*The Reporter's*statement of the case:

*Mr. F. Garter Pope*for the plaintiff.

*Mr. Horace 8. Whitman,*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 is a corporation duly incorporated under the laws of the State of Missouri. At the times of the different transactions hereinafter set forth in these findings of fact, the plaintiff operated, and still continues to operate, a system of railways in the State of Missouri and other States, doing business as a carrier of passengers and freights for hire and reward, under tariffs duly filed with the Interstate Commerce Commission by it and its connecting lines, with its concurrence, and published as provided by law.

II. At the times of the various acts complained of in the petition and supplemental petition filed herein there were in force a number of different tariffs upon the several lines which were parties thereto, and which are described or set out in paragraphs II, III, and IV of the original petition and in the supplemental petition, and all'of which are hereby made part of this finding by reference thereto.

*342Among the tariffs above referred to was Wabash Circular No. 118-1918, I. C. C. No. 4602, section 17 of which, under “ Special car charges,” among other things, provided:

“Equipment — Special baggage cars on regular trains— Basis of charge. (2) Without additional charge to party-traveling together in regular cars presenting the equivalent of 25 or more adult tickets purchased at current fares, aggregating not less than $25.00, as shown in lawfully filed tariffs and via routes via which such tariffs apply.”

There is also on file among the records of the Interstate Commerce Commission, Wabash Bailroad I. C. C. No. 4116, in force from August 15,1915, to December 31, 1918, section 2 of which, under the heading “ Special train rates,” among other things provides:

“ One way special trains for the exclusive use of any individual or party will be furnished to 100 or more adults (or the equivalent) presenting first-class individual or party tickets sold at fares shown in current I. C. C. or P. S. C. Mo. tariffs, and via routes via which such tariffs apply. Each passenger must be provided with tickets (party or individual) irrespective of number.

“Minimum charge for each movement $75.00, including the amount paid for tickets.

“ Equipment limited in the judgment of this company to actual requirements of the party. One baggage car, if necessary, for each 25 passengers.”

Missouri Pacific Circular 1915, 326 I. O. C., No. 4977, section 18 of which is set out in the original petition, paragraph III, and provides:

“SectioN 18. *Circuses, dog and pony shows, carnivals, street fairs, or like amusement companies.*— Circuses, dog and pony shows, carnivals, street fair companies, and other like organizations carrying paraphernalia, including live stock, actually used in giving performance and exhibiting under canvas or in the open, when limited to three baggage cars and not to exceed four box cars (where the latter are furnished) will be handled on same basis as theatrical companies, as outlined herein, except that no article weighing over two hundred and fifty pounds will be accepted for transportation as baggage. Tent poles or seats exceeding fifteen feet in length, merry-go-rounds, Ferris wheels, and similar wheels, balloons will not be transported as baggage. If loaded in same car with other property these articles will be charged for at prevailing freight rates.

*343“ Aeroplanes, air ships, automobiles, motorcycles, or other motor-driven vehicles, with or without motors, or engines will not be accepted for transportation in special baggage-car service. In cases where box cars are furnished instead of baggage cars, these , articles may be loaded in the same car with .other property and charged for at prevailing freight rates.

“ The right is reserved to substitute the equivalent in freight cars when baggage cars are not available, such freight cars to be moved only in mixed or freight train service.

“Should any movement of the character referred to in this section require more than three baggage cars, or four box cars, same will be considered a freight movement, and must be waybilled as freight as provided below.

“ *General instructions.*

“ SectioN 23. *(a)*Charges for special passenger and special baggage cars shown in this tariff are named subject to the ability of this company £ to furnish the necessary equipment at the time wanted.’ Therefore no promises should be made that the equipment will be furnished until matter is first referred to proper officer of this company and advice received from him that the equipment reserved can be arranged for.

* * ❖ ❖ * *%*❖

“ *Liability.*— Baggage and property carried in special baggage cars will be accepted only at owner’s risk for transportation in bulk by the companies mentioned in section 1, as a special carrier or carriers, not as a common carrier or carriers, and the companies named in section 1 will not be responsible for any damage resulting thereto.”

III. For many years the Quartermaster General of the United States Army has issued periodically a publication entitled “ Manual for the Quartermaster Corps.” An edition of said publication was issued and made effective iii December, 1916, and was in full force and effect at the time of the movements described in the petition and supplemental petition, and the extracts therefrom, quoted in paragraph VI of the petition, are true copies of certain provisions contained in said manual, which are made part of this finding.

The first claim made by the Government that one special car, or its equivalent, should be furnished free of charge *344for every 25 officers and enlisted men traveling with camp equipment and company property, was after June 18, 1918, when the Comptroller of the Treasury rendered a decision to that effect in the appeal of the Louisville and Nashville Railroad Company from the ruling of the auditor (24 Comp. Dec. 774). Prior to the comptroller’s decision the Government paid for camp equipment and company property as freight.

IV. Since the decision of the comptroller of June 18, 1918, all disbursing and accounting officers of the Government have made settlements with all carriers upon the basis that the United States was entitled to one baggage care free for the transportation of its camp equipment and company property for every 25 officers and enlisted men traveling.

V. Prior to January 1, 1917, the plaintiff and all the other lines, parties to the interterritorial military arrangement which became effective on that date, were parties to agreements, known as military agreements, between authorized representatives of the carriers and authorized officers of the War and Navy Departments which were for the most part similar to and were superseded by the said interterritorial military arrangement.

The said Interterritorial Military Arrangement or contract was entered into between the United States Army, Navy, and Marine Corps, and the carriers in the territories of the Central Passenger Association, New England Passenger Association, Southeastern Passenger Association, Southwestern Passenger Association, Trans-Continental Passenger Association, Trunk Line Association, and Western Passenger Association, to become effective January 1, 1917, and to supersede and cancel all previous interterritorial arrangements between the same parties, the relevant and material parts of which are as follows:

“ nr.

“ *Traffic covered by this agreement.*

“ The net fares, allowances, and routes in connection therewith authorized hereunder are applicable exclusively for the transportation of officers and enlisted men and others con*345nected with the United States Army, United States Navy, and United States Marine Corps for whom the United States Government .is lawfully entitled thereto and when traveling on transportation requests of the issue of the United States Army, United States Navy, and United States Marine Corps and at United States Government expense only.

“ *Net fares and allowances.*

“(1) *(a)*The fares applicable under this arrangement will be the lawful commercial fares as on file with the Interstate Commerce Commission from starting point to destination at time of movement (see exceptions, section V), less lawful land-grant deductions properly established, less five per cent (5%), the five per cent allowance not to exceed the maximum allowances or exceptions as specified in section VI. Government fares so established will apply to all military traffic as described in section III, including special train and special car movements as well as individual and'party movements (see section XI).

“(5) Proportions will not be used in any case in the construction of fares.

‡ ft * $ $ ‡

“ When special cars or special trains are furnished hereunder, not less than the minimum number of fares for such special cars or special trains will be required.

“ *Baggage.*

*“*(1) One hundred and fifty (150) pounds of personal effects, properly checkable as baggage, under the tariff of the initial carrier, will be transported without charge for each person. Personal baggage in excess of the free allowance stated when provision for the transportation of the excess baggage is specially made in United States Army, Navy, or Marine Corps transportation requests and is paid for by the United States Government will be charged for at. the regular excess baggage rate, based upon the net individual fare. When provision is not made in the transportation requests for the transportation of excess baggage, collection will be made from the traveler at the regular commercial *346rate for weight in excess of the free allowance stated. Excess baggage charges will not be subject to allowances, applicable m connection with the fares for .tickets under this arrangement. Baggage regulations in other respects than above will be in accordance with the tariff of the initial carrier checking the baggage in each case.

“(2) Company, battalion, regimental, or Government property is not included in the above.

“ *Termination of arrangement-.*

“ It is understood that this arrangement may be terminated at the pleasure of the United States Army, United States Navy, and United States Marine Corps, independently of each other, and the withdrawal from the arrangement of one of these branches of the Government will in no way affect the operation of the arrangement as to the other branches of the Government electing to continue it, the reservation being made, however, that the carriers may withdraw from the arrangement at their option.”

VI. The said Interterritorial Military Arrangement referred to in Finding V was endorsed by the Comptroller as follows:

“This interterritorial military arrangement'is but an extension of the one which became effective July 1, 1916, the principle of which received the endorsement and approval of the Comptroller of the Treasury, and hence said endorsement, dated May 20,1916, is repeated here for convenience.”

The letter of endorsement, dated May 20, 1916, addressed to the Secretary of War, is made part of this finding by reference, and, among other things, contains this statement:

“ 9. This agreement is considered advantageous to the Government for the following reasons: *(a)*It will result in a saving of Government funds. (5) It will procure cooperation on the part of the railroads, (e) It will facilitate the settlement of accounts.”

On March 3, 1917, the Quartermaster. General, with the approval of the Secretary of War, ordered copies of the said interterritorial military arrangements to be forwarded to different officers throughout the country concerned with the movement of troops, with the statement that “the new ar*347rangements are along the same lines as the old ones, some disputed points have been cleared up and are therefore published in the new arrangement.”

On September 15, 1917, all department, depot, and camp quartermasters were notified by the Quartermaster General that:

“1. It is desired that all shipping quartermasters be instructed that camp equipment and impedimenta will not be carried as checkable baggage, and that checkable baggage included only wearing apparel and related articles ordinarily carried in a trunk by a commercial traveler.”

Copies of the said Interterritorial Military Arrangement were distributed to all quartermasters between February 28, 1917, and March 3, 1917.

VII. The said Interterritorial Military Arrangement was in full force and effect as late as May 20, 1920, and its provisions have been observed by the carriers generally. Under the terms of said arrangement the Government has paid for transportation at rates substantially five per centum less than it otherwise would have paid.

VIII. On June 30,1917, at the instance and request of the properly authorized officer of the Army, the Wabash Bail-way Company and plaintiff transported .over their lines from Des Moines, Iowa, to Fort Logan H. Boots, Arkansas, 550 men and 29 cars of impedimenta (including some baggage subject to free transportation as within the usual free allowance of 150 pounds per passenger), and on August 25, 1917, at the instance and request of the properly authorized officer of the Army, said Wabash Bailway Company and plaintiff transported over their lines from Eden to (Camp Clark) Nevada, Missouri, 1,696 men and 16 cars of impedimenta. On May 23, 1917, the International *&*Great Northern and St. Louis Southwestern Bailway Companies and plaintiff at the instance and request of the properly authorized officer of the Army transported 51 men and one car of impedimenta from San Antonio, Texas, to Fort Logan H. Boots, Arkansas.

IX. This camp impedimenta accompanying the movement of troops mentioned in the eighth finding of fact were moved under bills of lading as follows:

Des Moines to Ft. Logan H. Boots: Bills of lading 153, 8 cars; 154, 2 cars; 155, 8 cars; 157, 7 cars; 158, 4 cars.

*348Eden to Nevada, Missouri: Bills of lading 28, 6 cars; 29, 5 cars; 30, 5 cars.

San Antonio to Ft. Logan PI. Boots: Bill of lading 10790, 1 car.

Bills of lading Nos: 28, 29, and 30 bore the notation, “ Free checkable baggage for - officers and - enlisted men, weighing-pounds, not listed in this B/L.”

After the transportation of said camp impedimenta, the same was receipted for on the several bills of lading bj the proper officers of the Government.

X. Plaintiff was the last carrier of all of such shipments, and as such last carrier it rendered its bills on the bills of lading to the disbursing quartermaster, United States Army, at Washington, D. C., said bills being based upon the current classification of freight, which plaintiff claims are applicable rather than the baggage rates applied by the Government.

Said bills were paid as rendered by the disbursing quartermaster, the camp impedimenta being paid for as freight (see orders, Findings III and VI), but when said quartermaster’s accounts were reached by the Auditor for the War Department in the course of auditing, they were suspended under the ruling of the Comptroller, of June 18, 1918, and thereafter demand was made by the said quartermaster upon plaintiff for a refund in each instance to allow for the free transportation of impedimenta on one car with each 25 men. Plaintiff declined to comply with said demand, and the Auditor for the War Department made deductions from plaintiff’s later bills to cover alleged overpayments as follows: On bill 101, $1,938.86; on bill 992, $1,024.85; and on bill No. 538, $201, an aggregate of $3,164.71.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff having performed certain transportation service for the Government, rendered bills therefor, which were audited and allowed. The auditors claimed, however, that the plaintiff was indebted to the United States on account of certain prior bills which had been.rendered to and paid by the disbursing officer. These were claimed to be .excessive or subject to certain deductions before their allow-*349anee or payment. The deductions were accordingly made from the plaintiff’s later bills, above referred to, over plaintiff’s protest. As stated by plaintiff’s counsel, this suit is ■to recover these’ deductions from plaintiff’s account “ made by the Auditor for the War Department because of alleged overpayments to plaintiff by disbursing quartermasters for the transportation of military impedimenta accompanying movements of bodies of troops.”

The findings of fact show that plaintiff and its connecting carriers performed the service in question under contracts •with the Government which afforded it special benefits not -applicable to the general public. This court has several -times, held that where the Government contracts for railroad transportation at special rates, although there may have been published tariff rates, it is bound by its contract. *Bush,*Receiver, v. *United*States, 52 C. Cls., 199; *Southern Pacific R. R. Co.*v. *United*States, 53 C. Cls., 332; *Yazoo & Mississippi Valley R. R. Co.*v. *United States,*54 C. Cls., 165; *Los Angeles & Salt Lake R. R. Co.*v. *United*States, 55 C. Cls., 305. The court has also been called upon to decide whether certain articles of Government property came within one or another classification. *Atchison, Topeka & Santa Fe Ry. Co.,*No. 33681, decided December 1, 1919; No. 34219, decided January 31, 1921; and No. 34088, decided February 24, 1920; *Galveston, Harrisburg & San Antonio Ry. Co.,*No. 34116, decided October 18, 1920; *Yazoo & Mississippi Ry. Co.,*No. 33834, decided June 28, 1919; *Baker,*Receiver, Nos. 34688 and 34756, decided June 13, 1921.

The principle announced in the cases mentioned above is controlling here. The deductions from the plaintiff’s bills should not have been made, and the plaintiff is accordingly entitled to recover. Judgment will be rendered in its favor for the sum of $3,164.71.

Hat, *Judge;*Downet, *Judge;*and Booth, Judge, concur in this opinion.

Geaham, *Judge,*

concurring:

I concur in the conclusions reached in this case, but feel constrained to give my views in a manner somewhat differ*350ent and fuller from that contained in the opinion of the court :

In May, June, and August, 191!, the United States, acting through the Quartermaster Corps of the War Department, made shipments of troops with their personal baggage and also a large quantity of company property, or baggage, sometimes termed army impedimenta. The record does not disclose in detail the different kinds or quantity of each articles of impedimenta embraced in the shipment, and only shows the number of carloads. However, it is apparently conceded by the parties that this impedimenta consisted, generally speaking, of what is usually in such movements, namely, tents, ambulances, wagons, caissons, munitions, cooking utensils, tools, bedding, and other articles of camp equipment particularly used by the military units of the Army.

Over the lines of the Wabash Railroad Company, as the initial carrier, and the plaintiff as the ultimate carrier, the transportation of these troops was arranged for in the usual way by the issuance of regular Government requisitions or orders by a quartermaster of the Army, whose duty it was to arrange and control the shipments. With each soldier was transported free his personal baggage to the amount of *150*pounds. The said army impedimenta was shipped as freight in a number of freight cars on regular Government bills of lading previously prepared by said quartermaster, and presented and signed by the initial carrier and delivered to the proper representative of the Government. The impedimenta was shipped in freight cars on said bills of lading so prepared, as was known to, and understood by, the representative of the Government at the time, and was in accordance with the practice and course of dealings between the railroads and the Government extending over many years. The service of transporting these troops to their respective destinations, in its ultimate stages, was performed by the plaintiff. Vouchers for the passenger fares of the troops and the freight charges for the impedimenta were duly prepared, presented, and paid by the proper representative of the Government, and the incident apparently closed. In June, 1918, almost a year after the performance of the said *351service by the plaintiff, the Comptroller of the Treasury decided, in the case of another carrier, covering somewhat similar facts of service, that under its baggage tariff filed with the Interstate Commerce Commission, allowing a baggage car free for every 25 persons traveling together, army impedimenta should be carried free as baggage on the basis of a car for every 25 soldiers traveling together, and that a charge or payment for transporting said impedimenta as freight was unlawful. Thereafter, when the account of the said quartermaster who had paid the plaintiff for the aforesaid shipments of May, June, and August, 1917, of impedimenta, as freight, came before the Auditor of the War Department for examination the payments were disapproved in accordance with said ruling of the comptroller, and the account of' said quartermaster as to these payments suspended. The quartermaster thereupon demanded of the plaintiff the refund of the amount so paid which was refused. No action was then taken either by the Government or the quartermaster to recover from the plaintiff this amount. The matter remained for the time in this shape.

In December, 1918, the plaintiff furnished transportation for another shipment of troops and presented its vouchers for payment, there being no dispute as to the correctness of the items of charge therein. These vouchers on reaching the auditor were approved and allowed, but a deduction was made on account of the said former claimed overpayment for transporting the impedimenta in the first shipment as freight, as to which payment the said quartermaster’s accounts have been suspended.

The plaintiff appealed to the comptroller, who sustained the ruling of the auditor, who deducted that amount from the sum due the plaintiff for the last shipment. The amount so deducted was the same which the plaintiff had refused to refund to the said quartermaster, whose account had been suspended for paying the same. Thereupon the plaintiff brought this suit to recover the amount so withheld, the same being a part of its unpaid bill for the last service rendered by the transportation of December, 1918.

The Government’s defense is by way of confession and avoidance, and presents an offset or counterclaim based upon *352its right to withhold an amount alleged to haye been overpaid on the first shipment, upon the ground that this amount was illegally paid the plaintiff as freight charges for the shipment of this army impedimenta. This counterclaim is in effect a cross suit by the Government in the nature of a reparation suit in this court to recover from the plaintiff railroad company the amount of an alleged overpayment. In other words, the real matter in dispute here does not grow out of the plaintiff’s claim *per se,*but out of the counterclaim or cross suit by the Government. The ground of recovery in this cross reparation suit involves the contention that the railroad company’s application of a baggage tariff was and is unreasonable and discriminatory, and relief is sought by asking this court to so decide and in doing so to apply this tariff by holding, through analogy and approximation, that army impedimenta is analogous to and approximates the paraphernalia of theatrical companies, dog shows, baseball teams, etc.,, and is covered by a special baggage tariff providing for a baggage car free where as many as 25 persons are traveling together. In other words, though the said baggage tariff does not specifically mention army impedimenta and does mention the paraphernalia of the aforesaid companies, and though no tariff in terms covering arm impedimenta as baggage is shown, this court is asked by analogy and approximation to apply the said special tariff to army impedimenta, and, in effect, thereby say that not to apply it would be unreasonable and discriminatory as to the defendant. It is plain that the defendant as plaintiff in an original proceeding could not have brought a suit in this court to determine the questions which it seeks to have determined by this cross suit. The jurisdiction of this court to hear and determine these questions will be discussed further on.

The tariffs hereinafter discussed and contained in Finding II were well known to the Government officials in the War Department having charge of the shipment of troops, and were in force prior to the execution of the contract of January 1,1917, hereinafter mentioned and discussed. Prior to the execution of said contract the Quartermaster General of the Army, under whose particular control shipments of the character involved here came, had given a departmental *353construction to these tariffs in his dealings with the railroad companies in his publication, “ Manual for the Quartermaster Corps” (see Finding II), issued to quartermasters, which was published periodically and was in effect in December, 1916, just prior to and at the time of the execution of said contract, January 1, 1917. From this publication it clearly appears that army impedimenta, company, or public property under the departmental construction of these tariffs and in accord with its policy and practice, was to be loaded and shipped as freight and the bill of lading prepared, prior to the transportation of troops, by Government officers. Checkable baggage under this manual was to be separated from company property, and it was pointed out that check-able baggage was to be carried free and was not to be loaded in cars with property loaded as freight.

On January 1,1917, the Government entered into a forma] written contract with the different railroad associations of the country, known as the Interterritorial Military Arrangement (Finding Y), to which the plaintiff was a party. This contract in tentative form, as a matter of precaution, was submitted by the Quartermaster General of the Army to the Comptroller of the Treasury for examination and suggestion before it was finally executed. The comptroller after examining the contract in a lengthy letter strongly approved of it and went into details to show the advantages in the way of economy which would accrue to the Government in particular, as well as the mutual benefit, to both parties thereto. He summed up his conclusions as follows:

> “ This agreement is considered advantageous to the Government for the following reasons:

> “ *(a)*It will result in a saving of Government funds.

> “(6) It will procure cooperation oh the part of the railroads.

> “ (e) It will facilitate the settlement of accounts.”

This contract provided, *inter alia,*that the fares applicable under it should be “lawful commercial fares on file with the Interstate Commerce Commission from starting point to destination at the time of movement * * * less land-grant deductions properly established, *less 5 per cent."*It will be seen that this gives the Government the advantage *354of *5*per *cent*reduction over the general public, which is a consideration going not only to the matter of passenger transportation, but also to the provisions, of the contract relative to the transportation of baggage and other materials, and makes the contract controlling as to rates and charges on army impedimenta, if, as hereafter appears, it provides that army impedimenta is not to be shipped as baggage or free of charge.

The contract further provides that “when special cars or special trains are furnished, not less than the minimum of fares for such special cars or special trains will be' required.” This clearly indicates that if special cars or special trains are to be furnished they must be requested, and if requested, they will be supplied subject to the provisions and requirements of the special car and special baggage tariff of the company on file. No request was made in this case for either special baggage cars or special trains, which would seem to dispose of the matter of. the Government being entitled to special cars, as instead of requesting special cars the army impedimenta was billed as freight on Government bills of lading as requested by the Government official in charge of the shipment. However, as hereafter appears, the special baggage and special train tariffs in force could not be relied upon by the Government here, as it failed to fulfill in advance their special requirements.

The contract, further provides for the transportation, as baggage, without charge, of the personal effects of the soldiers up to 150 pounds, and for extra charge for excess baggage. (Finding V.) It further provides that “when provision is not made in the transportation requests for the transportation of excess baggage, collection will be made from the traveler at the regular commercial rate for weight in excess of the free allowance stated,” and further, that “excess baggage charges will not be subject to allowances applicable in connection with the fares for tickets under this arrangement. Baggage regulations in other respects than above will be in accordance with the tariff of the initial carrier checking the baggage in each case.”

*355Section 2 of the paragraph providing for baggage is as follows:

> “(2) Company, battalion, regimental, or Government property is not included in the above.”

Before proceeding to discuss the meaning of this baggage paragraph and leaving the matter of this contract, it may be well to point out that this court has held that the Government is bound by a contract with a railroad company for transportation under which contract it receives special terms and benefits not applicable to the general public, as follows:

Where the Government contracts for transportation at a special rate and the plaintiff had on file a special tariff at a less rate than that agreed upon, and which was known to the. Government but which was not applied for, and with the conditions of which the Government had not complied, the Government is bound by its contract, as an individual would be. *Bush, Receiver*v. *United States,*52 C. Cls. 199.

Where the Government contracts with a railroad for special expedited service in transportation of troops and equipment, although there were published tariffs for freight-train service for the transportation at land-grant deductions, the Government was bound by its contract by reason of the special service provided for and rendered. *Southern Pacific R. R. Co.*v. *United States,*53 C. Cls. 332.

Where a railroad has á net tariff rate for expedited special service covering camp equipment and impedimenta without further deduction for land-grant rates, and the Government orders and secures the special service specified in the tariff without stipulating for a different rate, and the service is rendered, the Government must pay said rate as contracted for. *Yazoo & Mississippi Valley R. R. Co.*v. *United States,*54 C. Cls. 165.

Where a railroad company has notified the Government of special rates for special expedited service for transporting troops, their baggage and equipment, and the Government orders such service without objection to the rates and the special expedited service is rendered, a contract arose by which the Government was bound to pay the rate fixed by the railroad in its tariff for this special expedited service.' *356*Los Angeles & Salt Lake R. R.*v. *United States,*55 C. Cls. 305.

Where the Government contracts for special reduced rates for a full trip it can not claim advantage of a lower rate made by combining the party rate for a part of the distance and the individual rate for the remainder. The court held that the through individual rate which was contracted for was the only regular tariff rate which was applicable. *Atchison, Topeka & Santa Fe R. R.*v. *United States,*55 C. Cls. 528 (no opinion) : decided by the Supreme Court, April 18, 1921, 256 U. S., 205.

Recurring to the provisions of the baggage paragraph of the contract of January 1, 1917, section 2 thereof is as follows :

> “(2) Company, battalion, regimental, or Government property is not included in the above.”

What is the meaning of this section ? It is the part of the paragraph dealing with the transportation of baggage free. Two constructions can be put upon it, viz:

First. That company property, army impedimenta, etc., shall not be treated as baggage and shall not be transported free of charge as baggage.

Second. That company property, army impedimenta, etc., is expressly excepted by this section of the contract, from the contract.

Take the first proposition. This section is a part of the paragraph in the contract dealing with baggage, and the natural construction of the word “above” is that it refers to the preceding section in this paragraph. It is to be treated as if it were a proviso attached to the first section. It would thus necessarily mean that army impedimenta was not to be transported either as baggage or free of charge. If this construction be correct, that army impedimenta is not to be transported free as baggage under the contract, we face the question upon what terms is it then to be transported, as it is a necessary and practically constant concomitant of the transportation of troops? If the contract provides that it shall not be transported free as baggage, then the only other method of transporting it would be as freight at proper rates, as it was transported. No other special baggage tariff in *357force outside of the contract can be applied, for the contract controls, which provides that army impedimenta, camp equipment, etc., shall not be treated as baggage.

Now take the second proposition, namely, that this section as to army impedimenta means that it is excepted, from and not included within the provisions of the contract. In that case, the basis of the shipment of army impedimenta and payment for the same must be found elsewhere than in the contract. There was no tariff of the carriers involved in this transportation in existence at the time of this shipment which specifically covered the transportation of army impedimenta. This being the case, it could only be shipped as freight under the regular freight rates, or as baggage under the special provisions of some baggage tariff of these carriers then on file. . This brings us up to the question whether army impedimenta comes within any of the provisions of the baggage tariffs of these carriers on file at the time. i

The initial carrier here was the Wabash Railroad Company and its baggage tariff, and the general provisions thereof not being in conflict with the tariff of the Missouri Pacific Railroad Company, the ultimate carrier and the plaintiff in this case, will control. Extracts from the tariff of the Wabash Railroad Company and the provisions of the tariff of the Missouri Pacific Railroad Company that are here applicable are fully set out in Finding II. These tariffs are the special tariffs applying to special baggage cars and special trains, and as they are special tariffs involving special rates the railroad company has the right to limit them by special restrictions and requirements to be fulfilled before the special concessions therein can be demanded or secured.

These tariffs contain no specific mention of, or provisions for, the transportation of army impedimenta, company, battalion, regimental, or Government property. Army impedimenta can only be brought within their provisions by analogy and approximation to the subjects and the organizations and aggregations therein mentioned. Whether this puzzle of approximation and analogy is one for this court to work out and whether it is within its jurisdiction to work *358it out and decide it, is a question which will be discussed later. For the present let us see what were the provisions of these tariffs as applicable to the case in hand; how far they can be applied to the transportation of army impedimenta free of charge as baggage in the light of these provisions of the aforesaid contract of January 1, 1917, which, among other things, provides for the transportation of troops at 5 per cent less than the regular rates, the basis upon which the Government paid for the transportation of troops here involved.

Now as to the provisions of these tariffs:

First. It is provided that special baggage cars will be furnished “without additional charge to party traveling together in regular cars and presenting the equivalent of twenty-five or more adult tickets *purchased at current rates."*

It will .be seen from this that in order to secure the benefit of a special baggage car free for each 25 persons the tickets for their transportation must have been “ purchased at current rates.” The tickets for the soldiers transported in the instant case were not purchased and paid for at “current rates,” but at 5 per cent less than current rates, and the Government having failed to comply with this requirement can not claim the service named in the tariff.

Second. It is further provided that should any movement of the character referred to in this section — namely, circuses, carnivals, amusement companies, etc. — “require more than three baggage cars or four box cars it will be treated as a freight movement, and must be waybilled as freight as provided.” So that, all that could,- in any event, have been claimed under this tariff in the way of free baggage is limited to three baggage cars or four box cars. The balance, it is distinctly provided, shall be moved as freight and way-billed as such.

Third. It is provided that the supplying of these special cars shall be subject to the ability of the company to furnish the necessary equipment at the time wanted, and that no equipment will be furnished until request — that is, “ for the free baggage cars” — has first been referred to the proper officer and he has decided that the equipment can be arranged for. There was no such request and no such pre*359arrangement in this case. The Army impedimenta in this case was shipped as freight at the Government’s request on Government bills of lading prepared by Government officers. This seems to clearly dispose of the question as to whether the Government in the instant case was entitled, under the special baggage tariff applicable to the shipment, to a baggage car free for each twenty-five soldiers transported, in which to transport Army impedimenta.

While the foregoing conclusions dispose of this case in favor of the plaintiff, it seems a fit occasion to discuss another phase of it, inasmuch as cases involving similar questions appear to be constantly recurring here.

As heretofore pointed out, this proceeding involves an effort upon the part of the Government to have this court apply a railroad tariff by analogy and approximation, by the inauguration and adoption of a sort of *cy fres*doctrine of application; in effect, to hold that the aforesaid special baggage tariff, allowing a baggage car free for each twenty-five persons or more traveling together, applies to Army impedimenta, and that such impedimenta is baggage within the terms of that tariff, and that the application of the tariff by the railroad company, holding that impedimenta is not baggage and can not be transported under the rates there provided, is unreasonable and discriminatory.

Section 22 of this interstate commerce act provides:

> “ Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.” 24 Stat., 379, 387.

The courts have held that the tariffs established by the Interstate Commerce Commission are fixed rules of law and that where no serious question of the application of rates or discrimination arises the Federal courts (not including this court) have concurrent jurisdiction to award actual damages suffered by reason of the violation of these tariffs. *Texas*& *Pacific Ry. Co.*v. *Abilene Cotton Oil*Co., 204 U. S. 426; *Pennsylvania Railroad Co.*v. *International Coal Mining*Co., 230 U. S., 184, 196, 197; *Sections 8 and 9, Interstate Commerce*Act, 24 Stat., 382.

*360In the case of *Texas & Pacific Ry. Co.*v. *Interstate Commerce*Commission, 162 U. S., 197, 232, the court said:

> “ Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic *similarly*circumstanced, the act to regulate commerce leaves common carriers as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic; to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits.”

There were no tariff schedules in force at the' time of this transaction in terms fixing the rates for the transportation of camp equipment, camp property, or other Government property, and any rate in existence could only be applied by analogy and approximation, which is what this court is asked to do in this case. This is a matter for the Interstate Commerce Commission, whose jurisdiction to establish rates and determine questions of discrimination is exclusive.

In the case of *Texas & Pacific Ry. Co.*v. *American Tie*Co., 234 U. S., 138, the company had a tariff schedule for lumber. An effort was made to get the court by analogy to apply this tariff to railroad ties. The court declined to do it, and held it was a question for the Interstate Commerce Commission.

The very purpose of the interstate commerce act was to provide uniform rates after a hearing, and investigation of all the facts and circumstances, and to do away with the conflict and confusion which existed by reason of the conflicting and confusing decisions of the courts on the question of discrimination and unreasonableness of rates and their application. The carrier can not depart from these rates as fixed or apply them in a discriminatory or unreasonable manner without incurring penalties.

In the case at bar the question is one of fact under all the circumstances, is administrative in character, and is for the decision of the Interstate Commerce Commission and not this court. However, as pointed out above, carriers under the interstate commerce act and at common law are not for*361bidden to discriminate, provided discrimination is not unjust and unreasonable under all the circumstances as “between persons and traffic similarly circumstanced,” provided “ the service is like and contemporaneous service,” rendered “ under substantially similar conditions and circumstances.”

Were the persons and traffic involved here similarly circumstanced as regards the general public and such aggregations as theatrical companies, dog shows, baseball teams, etc., intended to be covered by such special baggage tariff? It must be borne in mind when dealing with the question of transportation of army impedimenta that the “person” who is being dealt with is the Army of the United States, where a shipment of two regiments, or 6,000 men, under the application of this tariff asked for by the Government, would require approximately 240 baggage cars, more, probably, than the company possessed and almost certainly more than it could command for the purpose.

A discrimination between parties not “similarly circumstanced,” in other words, parties who do not compete with each other, is not a discrimination within the meaning of the act. It has been contended in this case that because this tariff allows certain special rates to theatrical companies, it should therefore allow the same to the Government. There is no 'competition between the Government and theatrical companies. They are not in the same class. They are not similarly circumstanced. There are various reasons of business policy which could be adduced for granting this rate to theatrical companies that would not apply to the Government. The Government in the transportation of soldiers does not, financially or in any other way, come into competition with any of the parties given special rates under this tariff, and consequently there can be no unjust discrimination and no cause for complaint. If the rates given these parties should be conceded to be illegal, there would be no reason why the Government should be allowed illegal rates. If the rates are not unjustly discriminatory, they are justifiable. These party-rate tickets secure patronage which yields large revenue to the railroads. The withdrawal of these tickets would destroy that patronage. These and other considerations must be taken into account in determining *362whether there has been “ like and contemporaneous service ” rendered “under substantially similar circumstances and conditions.” The traffic provided for in the company’s schedules has no anology or resemblance to that carried on by the Government. It is not “like and contemporaneous service under substantially similar circumstances or conditions.” It was held at common law, and under statute at one time, lawful to allow ministers of the gospel to travel on half-fare tickets upon the theory that they did not come in competition with business men and that no injustice was done to anybody. There is no analogy or likeness between the business of the Government in the transportation of soldiers of an army and the various classes described in the company’s schedules. The Government’s business is not like that of a theatrical company any more than it is like that of a brass band or a football team. It is not a party of like character to any of these, regularly organized for the purpose of giving exhibitions and traveling together. It is not engaged in the same business as any of these classes that are given special rates. It is not in competition with them, and therefore is not injured or discriminated against; and consequently, its contention that it is entitled to the benefit of these schedules can not be upheld.

It follows from the foregoing that in any view of this case the plaintiff should recover, and that judgment should be entered in its favor for the amount claimed in its petition.