#### DENVER *&*RIO GRANDE RAILROAD COMPANY v. THE UNITED STATES.

[No. 33301.

Decided May 5, 1919.]

*On the Proofs.*

*Land-grant deductions; mistake of law.*— Where a plaintiff settled for its services upon a land-grant basis, did not assert a greater right, and for many years continued to present and certify its vouchers upon that basis, it can not now be heard to complain that it was misled by decisions of the Comptroller, in which it apparently acquiesced, and is subject to the usual rule as to mistakes of law.

*Baltimore <& Ohio R. R. Go.*v. *United States,*52 C. Cls., 468, and *Oregon-Washmgton R. R.*<C *Navigation Co.*v. *United States, post,*p. 131, followed.

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

*Mr. William O. Prentiss*for the plaintiff. Clarh, *Prentiss & Glarh*were on the briefs.

*126Before the passage of the Interstate Commerce Law the last carrier of an inter-line shipment was, as a matter of general railroad law, entitled to hold a lien and sue for the total freight charge. 2 *Hutchinson on Carriers,*3d Ed., sec. 826, p. 920; 2 *Moore on*Carriers, 2d Ed., sec. 13, p. 683; *New Yorlc Central B. B. Co.*v. *Weil,*119 N. Y. Suppl., 676, 678.

Under the Interstate Commerce Law the final carrier is not only empowered to collect the through chai'ge, but is burdened with the duty and obligation of collecting the full published tariff rate and is powerless to relieve or release a shipper or consignee from any part of the same.

In *Poor*v. *C. B. c& Q. By. Co.,*12 I. C. C., 418 (1907), the Interstate Commerce Commission stated the law as declared in decisions of the Supreme Court.

Upon the particular point here involved it will suffice to notice the late case of *Louisville and Nashville B. B. Co.*v. *Maxwell,*237 U. S., 94.

As to property not belonging to the Government but transported on Government bill of lading, the Government stands in the same position as an individual shipper and is obligated by the law to pay the regular published tariff rates.

And instead of the Government being permitted to take advantages of alleged acquiescence of the railroads, as held by this court in the *Baltimore and Ohio case,*52 C. Cls., 468, the Interstate Commerce law estops the carriers from acquiescence in settlement for transportation of effects and property of Government officers and employees at reduced rates, and estops the Government from setting up any such alleged acquiescence as a bar to recovery of the full tariff rates.

If the Interstate Commerce law were not controlling and the claimant had receipted for the payments as in full, or the so-called vouchers could be regarded as equivalent to such receipts in full, and the claimant had shared the Comptroller’s mistake of law, the fact that the Government has not been prejudiced would still be controlling.

The case of *Great Northern By. Co.*v. *United States,*42 C. Cls., 234, is directly in point. There the railway company operated an all land-grant road between two points *127ou which it ran its freight trains; but for its passenger and mail trains it used for a part of the distance a cut-off over a section of nonland-grant road. Under contracts with the Postmaster General providing for the statutory rates of compensation (which were subject to land-grant deduction for land-grant distance) the railway company carried the mails over the shorter route embracing land-grant and non-land-grant mileage. The Postmaster General, treating the service as if it were over the all land-grant route, imposed land-grant deduction for the whole distance, and during a period of twenty years made settlements accordingly. The railway company at the times of such settlements receipted in full to the United States therefor and at no time up to the filing of the suit ever formally demanded any additional compensation. An elaborate argument was made for the Government, pressing the defenses of estoppel by acquiescence, mistake of law, and accord and satisfaction, but this court sustained the claim of the railway company for the additional amount which it would have received (within the period of limitation) if it had been paid the full rate for the nonland-grant mileage.

The court there held that even mutual mistake of law and receipts in full for a period of twenty years, were ineffectual to bar the claimant from the full compensation to which it was lawfully entitled under its contract.

And *Pickley*v. *United States,*46 C. Cls., 77, is also directly in point. There, as here, the claimant had an express contract, and the Comptroller of the Treasury had rendered a decision controlling the disbursing officer in respect of the amount payable.

In *Baldwins Case,*15 C. Cls., 297, at 303, the governing principles are well and comprehensively stated.

On the question of the certification, in the face of the decisions of the comptroller, of the so-called vouchers at land-grant rates instead of at the full rates, the case of *Pennsylvania*v. *United*States, 36 C. Cls., 507 (noticed in the decision in the *Baltimore and Ohio ease),*is also in point. There, at p. 527, this court said:

“ The doctrine of estoppel for failure to present — a doctrine not favored in the law — can not be invoked by the *128party whose officers erroneously decided presentation to be a useless proceeding. Estoppel might arise against a party where his own conduct has caused another to act differently from a course which otherwise such person might pursue without reference to a statute of limitation. It can not rest by mere silence upon a departmental ruling adverse to jurisdiction, with no additional rights acquired by a claim, and no injury done to the debtor in the meantime.”

The cases on the subject of mistake of law, cited in the decision in the *Baltimore and Ohio*case, involved payments made under mistake of law which it was sought to recover back, and have no application here. The claimants here are suing for balances due on liquidated claims, withheld by reason of erroneous decisions of the Comptroller of the Treasury.

Nor is there here any question of laches. The claim is for causes of action arising within the period of limitation fixed by the Government.

And the cases on the subject of payment and acceptance, cited in the decision in the *Baltimore and Ohio*case, are readily distinguishable from this case and from the cases we have cited.

In *United States*v. Oarlinger, 169 U. S., 316, the court noticed that it was contended that, from the facts found by the Court of Claims, the law would imply a contract between the claimant and the United States, and that on the part of the United States it was contended that the regulation relied on by the claimant did not constitute an express contract of employment between the parties and that the facts negatived any notion of an implied contract to pay any additional beyond the statutory rate of three dollars per day. After deciding that the regulation invoked did not constitute an express contract nor sustain the claimant’s contention of an implied contract, and thus disposing of the case, the court went on to consider the acquiescence of the claimant as also a ground for the same conclusion, holding that such acquiescence, in the absence of a contract, established the agreement of the parties.

The principle of these cases is stated in *Hughes*v. *United States,*25 C. Cls., 472 (syllabus):

*129“A receipt in full is but evidence, ordinarily, in the nature of an admission, liable to be explained or contradicted. But in cases, of implied contract, where the consideration is undetermined and the parties may agree upon the price, the receipt in full is an agreement to fix the value of the thing sold, and to consider the price so agreed upon as the full consideration ox the contract.

“A payment of a part of a debt is not payment of the whole; but in cases of implied contract there is no whole and no part until the amount is fixed by agreement of parties or the verdict of a jury.”

*Mr. Hornee G.*Whitman, with whom was *Mr. Assistant .Attorney General William L.*Frierson, for the defendants.

Hay, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This is a suit for the recovery of $2,854.98 alleged to be due the plaintiff by the defendants, which amount is in addition to the amount paid the plaintiff on account of items of freight transportation furnished to and paid for by the United States. All the payments were made by disbursing officers on vouchers certified to be correct and presented to them by the plaintiff. The plaintiff now seeks to recover the difference between the amounts thus claimed and paid and the amount the plaintiff would have received had payment been claimed and made at commercial rates without any deductions on account of land grant, the plaintiff asserting that the property transported was not the property of the United States, and therefore not subject to land-grant deductions, the property being the effects of Army officers. In effect, the plaintiff, after it has been paid what it claimed was due it, now asserts that it did not claim enough for the service rendered; that it ought to have claimed the above amount in addition to what it did claim; that it was misled by certain decisions of the Comptroller of the Treasury; that it made a mistake in claiming only the amount which it did claim, and that the defendants -were responsible for that .mistake, which should now be rectified by this court.

The case is clearly within the holding of this court in *Baltimore & Ohio Railroad Co.*v. *United States,*52 C. Cls., 468, and *Oregon-Washington R. R. & Navigation Co.*v. *130*United*States, this day decided, except as to one item of the above claim, which will be dealt with later in this opinion.

The claim that the plaintiff was misled by the decisions of' the Comptroller, and was thereby prevented from demanding what was due it, can not be entertained. Ignorance of the law is no excuse. And it is hardly conceivable that the-plaintiff, which at all times has in its employment the best legal talent, could have been misled in a matter of this sort,, or could have been ignorant of its rights in the premises,. It must have agreed with the Comptroller in his interpretation of the statutes; and certainly for many years it continued to present and certify its vouchers, claiming amounts which were paid by the defendants, and not expecting to receive any amount in addition thereto. As was said in *Baltimore & Ohio Railroad Co.,*supra, p. 473: “Indeed, we-may well know that if there had been any protest on the part of the railroad company against this basis of settlement, or-any claim for payment at a higher rate, the transactionsvvould otherwise have presented themselves. If a quartermaster refused payment on a basis thought to be correct by the railroad company, it was always its right to file a claim' with the auditor, and upon adverse action by him, to appeal to the Comptroller of the Treasury.” To which may be added that if it was not satisfied with the action of the-Comptroller it had the right to bring its claim to this court for adjudication. It is inconceivable that the plaintiff should have been ignorant of its rights as above set out,, and the only explanation of its action is that it did not believe that it was receiving for its services anything less than, it was entitled to. But if the interpretation of the Comptroller was wrong, and the plaintiff acquiesced in that interpretation, can it now in this court make a claim for the additional amount, which it has never before claimed ? Is it not subject to the usual rule as to mistakes of law? We think it is, and as that rule is fully discussed in *Baltimore*& *Ohio R. R.*Co., supra, p. 482, it is not necessary to discuss it here.

The petition of the plaintiff must be dismissed as to all of the amount sued for except the amount of $64.31, set out in. *131Finding XIX. This amount was disallowed by the auditor after it had been claimed, and should not have been deducted, as the property transported was not Government property, and land-grant deductions should not have been made from the amount claimed.