#### CHICAGO AND ALTON RAILROAD COMPANY v. THE UNITED STATES.1

[No. 30926.

Decided May 29, 1922.]

*On ■the Proofs.*

*Transportation of matt; night service.*— Where a railroad company contracts with the Government to transport the mails in accordance with the rules and regulations of the Post Office Department, it must, in accordance with such rules and regulations, take charge of and transport all mails between stations where agents or other representatives of said company are maintained and post offices not over 80 rods from said station, both day and night, and the company is equally bound to perform such service where the agent’s office is closed during the night.

*Same; performance; protest.*— Where a railroad company protests against carrying the mails between a station and a post office at night, and at the same time enters into a contract to perform such service, it acquires no rights by such protest.

*Petition; amendments; statute of limitations.*— Where an amended petition is filed to cover causes of action accruing subsequent to the filing of the original petition, it will only cover such as have accrued within six years prior to the date of its filing.

*The Reporter’s*statement of the case:

*Mr. Benjamin Garter*for the plaintiff.

*Mr. W. F.*Norris, 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. Plaintiff is a corporation organized under the laws of the State of Illinois. At the times hereinafter stated it operated, and still operates, a system of railway in the States of Illinois and Missouri. Under agreements entered into by plaintiff’s president and the authorized officers of the Post Office Department in June, 1903, and June, 1907, plaintiff, since 1906, and its predecessor, Chicago & Alton Eailway Company, prior thereto, at said times was transporting and it still is transporting the mails over a route numbered 145022, from Godfrey, in the State of Illinois, to Kansas City, in the State of Missouri.

*301Substantially similar agreements with those of 1907 were entered into in June, 1911, and in June, 1915, after the customary quadrennial weighing of the mails. The first route, number 145022, extended from Wann, Illinois, to Kansas City, Missouri, and from and after June, 1907, the route was between Godfrey, Illinois, and Kansas City, Missouri.

II. Said agreements for the transportation of the mails were in each case initiated by what is called a distance circular, which in February, 1903, was as follows:

No. 2504.

No. of route 145022, from Wann to Kansas City.

Post Office DepaRtment,

Office of the Second Assistant PostmasteR General,

Division of Railway Adjustment,

Washington, *D. O., Feb. 85,1903.*

Sir: Please have this railroad distance circular carefully and properly filled and return to this office as soon as possible.

In column 1 state the distance from station to next station.

In column 2 state the names of all railroad stations and points where mails.will be exchanged, and in the order in which such points will be reached on outward trips, and designate the stations where your company has no agent or other employee by an asterisk (*).

In column 3 state the official name of all post offices and postal stations located not more than two miles from the nearest station or point where mails will be exchanged.

In column 4 state the distance by the shortest practicable route open to public travel'between the nearest door of the baggage room and the nearest door of the post-office building where the receipt and delivery of mail is practicable.

In column 5 state the distance by the shortest route open to public travel between the post office or postal station and the point on the railroad track nearest to each post office or postal station.

State fractions of a mile decimally, using not more than two decimal figures.

¡íggpPlease have the statement verified by the engineer or other competent officer of the road, and have the acceptance on second page signed by the president or manager of the company, and the seal of the company impressed on this circular.

*3021. Every railroad company is required to take the mails from and deliver them into all terminal post offices, whatever may be the distance between the station and post office, except in cities where other provision for such service is made by the Post Office Department. In all cases where the department has not made other provision, the distance between terminal post office and nearest station is computed in and paid for as part of the route.

2. The railroad company must also take the mails from and deliver them into all intermediate post offices and postal stations located not more than 80 rods from the nearest railroad station at which the company has an agent or other representative employed, and the company shall not be relieved of such duty on account of the discontinuance of an agency without thirty days’ notice to the department.

3. The department will provide for the carriage of mails to and from intermediate post offices and postal stations located more than 80 rods from the nearest railroad station; and also to and from intermediate post offices and postal station located 80 rods or less from the railroad station when the railroad company has no agent or other representative employed at such station.

4. In all cases the distance between the railroad station and the post office or postal station must be measured by the shortest route open to public travel, avoiding angles, from the nearest door of the baggage room to the nearest door of the post-office building where the receipt and delivery of the mails is practicable. In case there is no baggage room or station the measurement shall be made from the middle of the station platform where mails are exchanged. The route need not be a way regularly dedicated to public use; and if it be over j>rivate property, no prohibition against the Government will be recognized which shall not also have been made and enforced against the general public. _

_ 5. Any person acting for an advantage to himself or another, by authority or consent of the railroad company and representing in any manner the interest of the company or railroad in its business transactions with the public, wiíl be regarded as the company’s agent or *representative.*— (Postal *Laws and Regulations, 190%, section 1911.)*

At connecting points where railroad stations are not over 80 rods apart a company having mails on its_ train to be forwarded by the connecting train will be required to transfer such mails and deliver them into the connecting train, or, if the connection is not immediate, to deliver them to the agent of the company to be properly dispatched by the trains of said *company.*— (Section *119%.)*

*303Note. — A well-established practice, such as railroads receiving and delivering mail matter at all offices within 80 rods without extra charge, must be deemed to have been considered by Congress and the department when fixing the full rate of compensation for railroad mail transportation, and the pay for such service is included in the general compensation fixed for the routes. Where a railroad company performs such mail-messenger service without objection it' is precluded from demanding further compensation than the rates allowed for the transportation of the mails. (Eail-road Company *v.*United States, 21 Ct. Claims, 155.)

At places where railroad companies are required to take the mails from and deliver them into post offices or postal stations, or to transfer them to connecting railroads, the persons employed to perform such service are agents of the companies and not employees of the Postal Service, and need not be sworn; but such persons must be more than sixteen years old and of suitable intelligence and character. Postmasters will promptly report violation of this requirement.—

*(Section 1198.)*

At all points at which trains do not stop where the Post Office Department deems the exchange of mails necessary, a device for the receipt and delivery of mails satisfactory to the department must be erected and maintained; and pending the erection of such device the speed of trains must be slackened so as to permit the exchange to be made with *safety.*— (Section *MOO.)*

W. S. Shallenberger,

*Second Assistant Postmaster Generad.*

Mr. S. M. FeltoN,

*President Chicago <& Alton By.*CoChicago, *III.*

A clause printed on the back of said circular was signed by the president of the plaintiff company and is as follows:

*“*In case the Post Office Department authorizes the transportation of mails over this line or any part of it, the railroad company agrees to accept and perform the service upon the conditions prescribed by law and the regulations' of the department.

“ S. M. FeltoN, President.”

There was also a certificate under the seal of the company by its engineer to the effect that the statement of distances contained in the reply was correct. The distance shown from the railroad station to the post office was 4/100ths of a mile.

*304On September 8, 1903, the Postmaster General 'approved orders as follows:

WASHINGTON, D. C., *September 8, 1908.*

I hereby approve the following orders and regulations, originating claims and affecting the account of the Post Office Department and Postal Service in the following divisions:

# * * ❖ *

Second Assistant Postmaster General.

September 8, 1903.

# jfc % ***

H. 0. Payne, *Postmaster General.*

‡ ‡ íji *i¡t*#

“Order No. 24053. 145022-Mo. Wann (n. o.), Ill.;

Kansas City, Mo.; 301.62 miles; *21.75*t. a. wav-d-wt. 4,383 lbs.

“From July 1, 1903, to June 30, 1901, pay the Chicago and Alton Railway Co., quarterly, for the transportation of mails between Wann (n. o.), Ill., and Kansas City, Mo., at the rate of $48,141.79 per annum, being $160.60 per mile for 301.62 miles;

“ This adjustment is subject to future orders, and to fines and deductions, and is based on a service of not less than six l'ound trips per week.”

:|í ifc *%*# *

On the same day, September 8, the Postmaster General transmitted to the plaintiff company a communication as follows:

“ No. 2508.

Post Oeeice Department,

Office of the Second Assistant

Postmaster General,

Division of Railway Adjustment,

“ ’Washington, *D. O., Sept. 8,1903.*

Sir: The compensation for the transportation of mails, etc., on Route No. 145022, between Wann (n. o.), Ill., and Kansas City, Mo., has been fixed from July 1,1903, to June 30, 1907 (unless otherwise ordered), under acts of March 3, 1873, July 12, 1876, and June 17, 1878, upon returns showing the amount and character of the service for 60 successive *305working days, commencing March 4, 1903, at the rate of $48,741.79 per annum, being $161.60 per mile for 301.62 miles.

This adjustment is subject to future orders and to fines and deductions, and is based on a service of not less than six round trips per week.

Very respectfully,

W. S. SllALLENBERGER, *Second Assistant Postmaster General.*

Mr. S. M. Felton,

Pres., *Chicago <& Alton Railway*Co., Chicago, *III.”*

III. In February, 1907, a distance circular was transmitted by the Second Assistant Postmaster General to the plaintiff company, which, with the endorsements thereon, is as follows:

“ No. 2504 a.

Number of Eoute, 145022.

Post Oeeioe Department,

Office of tiie Second Assistant

. Postmaster General,

Division of Bailwav Adjustment,

Washington, *D.*(7., *Feb. 1§, 1907.*

Sir : Please have this railroad distance circular carefully and properly filled and returned to this office as soon as possible. Failure to return this circular promptly may cause corresponding delay in adjusting compensation on the route.

In column 1 state the distance from station to next station or point of exchange (if mails be received or dispatched at a point other than a regular station), the distances to correspond with the names of stations and exchange points as shown in column 2.

In column 2 state the names of all railroad stations and points where mails are exchanged, and in the order in which such points are reached on outward trips, and designate the stations where your company has no agent or other employee by an asterisk (*).

In column 3 state the name of each post office or postal station which receives mail from a point of exchange on this route; the name of the post office or postal station to be opposite the name of the point from which it is supplied, if possible.

In column 4 state the distance by the shortest route open to and used by the public in traveling between the nearest *306door of the baggage room and the nearest door of the post-office building where the receipt and delivery of mail is practicable.

In column 5 state the distance between the post office or postal station and the point on the railroad track nearest to each post office or postal station.

State fractions of a mile decimally, using not more than two decimal figures.

¡¡ggr’Please have the statement verified by the chief engineer or other competent officer of the road, and have the acceptance on second page signed by the president or manager of the company, and the seal of the company impressed on this circular.

Please send with the distance circular two copies of latest working schedule showing the trains operated over the line between the points mentioned on this route.

W. S. Sil ALLEN BERGER, *Second, Assistant Postmaster General.*

Mr. S. M. FeltoN,

*Pres. Chicago & Alton By.*Co., Chicago, *III.”*

The company named below agrees to accept and perform mail service upon the conditions prescribed by law and the regulations of the department applicable to railroad mail service. Exception taken to Order No. 165, issued by the Postmaster General March 2,1901, and Order No. 412, issued by the Postmaster General June 7,1907.

(See attached letter of protest bearing date of July 1, 1907.)

S. M. FeltoN,

*President or General Manager.*

“ I hereby certify that the statement of distances contained herein is correct.

(Impress seal here.)

W. D. Taylor,

*Chief*Engineer.”

*307The letter of July 1,1907, referred to above, is as follows:

“ The Chicago & Alton Bailroad Company.

S. M. Felton, President.

Office of the President,

*Chicago, July 1, 1907.*

Hon. James T. McCleary,

*Second Assistant Postmaster General,*

*Washington, D. O.*

Dear Sir: In submiting distance circular for route 145022 in connection with the quadrennial readjustment of July 1, 1907, in view of the reductions of mail pay, loss of mail revenue from withdrawal of empty equipment, change in method of ascertaining the daily average weight, under Postmaster General’s Orders 165 and 412, objected to, and heavy fines and deductions for delays and otherwise, protest is hereby respectfully made:

1. Against fines or deductions for late mail trains, believing the Post Office Department should accept schedules and trains as run, as all classes of traffic must necessarily do, compensation being for carriage only.

2. Against 105 days’ weighing, beginning late in February, to determine the daily average weight, as it is believed not to represent a fair basis.

3. Against furnishing rooms at stations for use of Post Office Department employees for distribution of mail, without payment or rental therefor.

4. Against the performance of messenger service between post offices and stations at terminal and intermediate points and between railway stations.

5. Against setting mail cars at stations for use as distributing post offices for more than a reasonable time necessary for loading.

6. Against furnishing transportation, other than for railway postal clerks accompanying the mail, as provided by Eevised Statutes 4000 (section 1182, Postal Laws and Eegu-lations).

7. Against furnishing space and facilities for distribution of mail on trains and for traveling post-office purposes without specific space pay therefor.

8. Against the practice of the Post Office Department in denying railroad companies full-line pay on what it terms a “half line of railway post-office cars,” although thé same service is required and furnished as on a full line.

Bespectfully,

S. M. Felton, *Presidents*

*308To this letter of July 1, the Second Assistant Postmaster General replied as follows:

Post Oeeice Department1,

SecoNd Assistant Postmaster General,

Division oe Railway Adjustment,

Washington, *October*J, *1907.*

Mr. S. M. Felton,

*Preset, Chicago and Alton R. R. Co.,*

*Chicago, III.*

Sir: This office is in receipt of the distance circular for Route No. 145022, from Godfrey, Ill., to Kansas City, Mo., filed by you for the term beginning July 1,1907, and’ending June 30, 1911, for railroad mail service by your company.

Note is taken of the modification made by you in the agreement clause in which you except Order No- 165, issued by the Postmaster General March 2, 1907, and Order No. 412, issued by the Postmaster General June 7, 1907, and enter protest against other rules, regulations, or requirements of the department with respect to the performance of service. In regard to this, I have to advise you that the department will not enter into contract with any railroad company by which it may be excepted from the operation or effect of any postal law or regulation, and it must be understood that, in the performance of service, from the beginning of the contract term above named and during the continuance of such performance of service, your company will be subject, as in the past, to all the postal laws and regulations which are now or may become applicable during the term to this service.

Very respectfully,

J. T. McCleary,

*Second Assistant Postmaster General.*

On November 4, 1907, the Second Assistant Postmaster approved orders as follows:

“ Washington, D. C., *Nov. 1,1.907.*

I hereby approve the following orders and regulations, originating claims and affecting the account of the Post Office Department and Postal Service in the following divisions:

# * **** *

Second Assistant Postmaster General. Nov. .4, 1907.

* * * * *

J. T. McCleary, *Acting Postmaster General,*

*309“ Order No. B24122. 145022. Mo. Godfrey, Ill., and Kansas City, Mo., 292.11 miles, 22.06 t. a. w., Chicago and Alton E. E. Co., Áv. D. Wt. 3,910 lbs.

“From July 1, 1907, to Aug. 11, 1907, pay the Chicago and Alton E. E. Co., quarterly, for the transportation of the mails between Godfrey, Ill., and Kansas City, Mo., at the rate of $45,204.02 per annum, being $154.75 per mile for 292.11 miles, and from August 12,1907, to June 30,1911, at the rate of $45,135.93 per annum, being $154.75 per mile for 291.67 miles, Godfrey Sta. (n. o.), Ill., to Kansas City, Mo.

“This adjustment is subject to future orders and to fines and deductions, and is based on a service of not less than six round trips per week.”

* * * * *

The Second Assistant Postmaster General issued to the plaintiff notice as follows:

“ No. 2508.

Post Office Department,

Office of the SecoND AssistaNt

POSTMASTER GENERAL,

DivisioN of Kailway Adjustment,

*Washington, I). C.*

Sir: The compensation for the transportation of mails, etc., on Eoute No. 145022, between Godfrey, Ill., and Kansas City, Mo., has been fixed from July 1,1907, to Aug. 11,1907 (unless otherwise ordered), under acts of March 3, 1873, July 12, 1876, June 17, 1878, March 3, 1905, and March 2, 1907, upon returns showing the amount and character of the service for a number of successive working days, not less than ninety, commencing February 20, 1907, at the rate of $45,204.02 per annum, being $154.75 per mile for 292.11 miles, and from Aug. 12, 1907, to June 30, 1911, at the rate of $45,135.93 per annum, being $154.75 per mile for 291.67 miles, Godfrey Station (n. o.), Ill., to Kansas City, Mo.

Subject to further readjustment in accordance with section 1272, P. L. *&*E., where lap service is involved and not so readjusted.

This adjustment is subject to future orders and to fines and deductions, and is based on a service of not less than six round trips per week.

Very respectfully,

J. T. McCleary,

*/Second Assistant Postmaster General.*

Mr. S. M. Felton,

*Pres. Chicago <& Alton R. R. Go.,*

Chicago, *III.”*

*310Substantially the same kind of distance circular as that used in 1907 was sent to plaintiff company after the weigh-ings prior to July 1, 1911, and also prior to July 1, 1915, and the same was in each instance returned with a similar acceptance thereon to that stated above in this finding, other than the “exception” mentioned therein, and this acceptance was followed with orders by the department similar in substance to that of November 4, 1907, stating the route and compensation.

IY. Among the regulations of the Post Office Department in effect when said agreements were signed, and to be found in the Postal Laws and Regulations, a volume theretofore compiled and published by said department in 1902, are the following:

“ Sec. 1191. Every railroad company is required to take the mails from, and deliver them into, all terminal post offices whatever may be the distance between the station and the post office except in cities where other provision for such service is made by the Post Office Department. In all cases where the department has not made other provision the distance between terminal post office and nearest station is computed in and paid for as part of the route.

*“*2. The railroad company must also take the mails from and deliver them into all intermediate post offices and postal stations located not more than eighty rods from the nearest railroad station at which the company has an agent or other representative employed, and the company shall not be relieved of such duty on account of the discontinuance of an agency without thirty days’ notice to the department.

“ 3. The department will provide for the carriage of mails to and from intermediate post offices and postal stations located more than eighty rods from the nearest railroad station ; and also to and from intermediate post offices and postal stations located eighty rods or less from the railroad station when the railroad company has no agent or other representative employed at such station.

“ Seo. 1196. Whenever the mail on any railroad route arrives at a late hour of the night, the railroad company must retain custody thereof by placing the same in a secure and safe room or apartment of the depot or station until the following morning, when it must be delivered at the post office, or to the mail messenger employed by the Post Office Department, at as early an hour as the necessities of the post office require.

*311“ Seo. 1197. "When a train departs from a railroad station in the night time later than 9 o’clock, and it is deemed necessary to have the mail dispatched by such train, the division superintendent of Railway Mail Service will, where mail is taken from and delivered into the post office by the railroad company, request the company, or where a mail messenger or carrier is employed by'the Post Office Department will direct him, to take the mail to the railroad station at such time as will best serve the interest of the mail service. Such mail will be taken charge of by the agent or other representative of the railroad company, who will be required to keep it in some secure place until the train arrives, and then see that it is properly dispatched.”

Additional sections are set out in distance circular 2504.

V. Rush Hill, in the State of Missouri, is an intermediate station on said postal route numbered 145022. Petitioner’s station there is less than eighty (80) rods distant from the post office. At said times plaintiff operated on its said lines a number of passenger trans, carrying mails, which, on their regular schedules reached Rush Hill during the day and some of which stopped at that station. It also operated at said times a number of passenger trains, carrying mails, which, on their regular schedules, reached and passed said place at night after nine o’clock and none of which stopped there. A train going east carried mails, but did not discharge or receive mails at said station. It carried them on to a point of transfer, where they were taken by train No. 9 going west. This latter train took on and discharged mail at Rush Hill, where it was scheduled to arrive at 2.50 a. m. This place did not appear on any time cards of plaintiff’s trains. Plaintiff’s station there was not kept open, nor was any agent of plaintiff on duty at night for any of its business with the general public. Mails for and from Rush Hill were carried on said trains passing after 9 o’clock at night. They were loaded into and taken from said trains in ways approved by the postal authorities. The mails were taken from the post office to the station by an employee of the railroad company and were either kept in the station or in a locker provided for the purpose until the employee charged with the duty came to meet the night train. He would take out the mail bags, place same on the crane, to be caught up by the

*312train, and place the incoming mail bag in the locker until morning. *

YI. Under requirements made by the postal authorities since some time in the year 1903 the mails for and from said night train No. 9 at said station have been carried at the company’s expense between the trains and the post offices before and a,fter the arrival and departure of the trains. By said communication of July 1,1907, from plaintiff’s president to the Second Assistant Postmaster General, and at other times, plaintiff protested against performing said transfer of the mails when its said stations were closed. In the early part of the year 1908 plaintiff by its proper officers, in relation to said transfer service and other services and facilities which plaintiff was furnishing at the demand of the postal authorities, notified those officers that it intended to sue for compensation. Following other protests and notices plaintiff’s passenger traffic manager, on April 12, 1910, wrote and sent to the division superintendent of the Railway Mail Service at Chicago, Ill., a letter relating chiefly to a requirement that apartments be furnished in cars for distribution and pouching of mails, but in which he also said:

“ We likewise contend and have made plain to you and to other superintendents of Railway Mail Service that any service which we perform and are obliged to perform on request of the Post Office Department which entails any additional and exceptional expense over and above the ordinary expenses of operating our passenger stations in the interest of our passenger, baggage, and express business must be at the expense of the Government, as, for example, the expense of furnishing messenger service in handling the mails between station baggage rooms and post offices where the expense is incurred exclusively in the interest of the Railway Mail Service and is not essential or necessary in the ordinary conduct of our passenger business, in taking, care of passengers, baggage, and express movements, and where it is possible in properly safeguarding our passenger, baggage, and express interests to arrange that the station and train employees may perform such messenger service. - ' “ Our claims in those particulars, particularly in connection with the expense of furnishing apartment cars, will be submitted in due course through our attorneys at Washington.

*313“ This communication is made a matter of record, and is in line with previous correspondence, and copy has been forwarded to the honorable Second Assistant Postmaster General and to the General Superintendent of Eailway Mail Service at Washington for their information.”

VII. Said transfer of mails from and to said night trains at said village was performed by persons employed by plaintiff for that purpose. To those messengers it paid for said transfer between the 8th day of June, 1905, and the 31st day of May, 1911, a total of one thousand four hundred and forty dollars ($1,440); which amount was claimed in the original petition filed in this court in this case. For said transfer performed between the 1st day of June, 1911, and the 31st day of December, 1917, it paid to the messengers at said station a total of one thousand five hundred eighty dollars ($1,580.00), such latter payments at said station being at the rate of five dollars ($5.00) per week.

VIII. The amounts paid by the plaintiff company for said service at night was a reasonable sum, and the expense to the Post Office Department for the transfer of mails at night at said place would have exceeded the amounts paid by the plaintiff if the service had been performed by persons under the separate employ of the Post Office Department for that purpose. •

The original petition in this cause was filed in June, 1911. The cause was submitted with some others of a similar nature upon demurrer to the petition in 1918. This demurrer was sustained on the 18th day of November, 1918, and the petition dismissed. Upon motion of the plaintiff to be allowed to amend the petition the order of dismissal was set aside on the 3d day of February, 1919, and the amended petition was filed on the 14th day of January, 1920. The amount claimed in the original petition is $1,440.00 and the amount of plaintiff’s claim during the six years prior to the filing of the amended petition is $960.

1

 Appealed.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff operated a system of railroad lines, on which postal routes were established. One of these routes extended *314from Godfrey, Illinois, to Kansas City, Missouri. In 1903 one of its termini was Wann instead of Godfrey. In 1903 the contract for mail transportation was with the Chicago & Alton Railway Company. In 1907 and afterwards it was with the Chicago & Alton Railroad Company. Just when the name was changed or the terms of any reorganization do not appear from the record. Rush Hill was a small station on the railroad where was maintained an agent in the -daytime, with hours from about 6 in the morning to 7 p. m. No agent for the transaction of business was on duty during the night. Two fast trains, carrying mail, passed this station at night, one going east and the other train, No. 9, going west, but neither of them made stops at this station. The train going east at night did not receive or discharge mails at this station, but carried them to a point beyond, where they were transferred to train No. 9 'going west, and by this train they were discharged on its arrival at Rush Hill, where it was scheduled to arrive at 2.50 a. m. The “ outgoing ” mails were taken on by this train by means of the “ catcher ” system, and the incoming mails were thrown off. A messenger was maintained, by the railroad company concerned, to see to it that the outgoing mail was in position to be caught by train No. 9, and that the mail thrown off was cared for. The service of this special messenger involved an expense of twenty dollars per month. There were trains which passed this station in daytime, some of which made stops. The plaintiff’s contention is that it should be reimbursed the expense of the special messenger who attended the night train making no stops. There were a number of other stations on railroad postal routes on plaintiff’s lines where conditions were similar to those at Rush Hill.

The Chicago & Alton Railway Company in 1903 and the Chicago & Alton Railroad Company prior to and after 1907 were transporting the mails under contracts made with the Post Office Department. These contracts fixed the rates of compensation and, among other things, provided that the mails would be transported under the rules and regulations of the department. Admitting that it was bound to take the mails from the post office at Rush Hill to the trains and there deliver them, and likewise to take the incoming mails *315to the post office, where the trains handling mails arrived in the daytime, the plaintiff contends that it was not bound to render this service at night. But it did render the service. The service covered by the agreed compensation for transporting the mails over this particular route, as upon other routes, included at certain intermediate points, where the distance between the station and post office was less than 80 rods, the handling of the mails by the carrier to and from such office. Some time during the period between July 1, 1903, and June 30, 1907, the railroad company objected to the requirement that, it render the service complained of, because its station office was not open at night, but the department took the opposite view. The department’s construction of its rules and regulations in this regard was therefore well known to the Chicago & Alton Railroad Company when it entered into the contract of 1907 and those of 1911 and 1915. It did not have to enter into the contracts. It was free to accept or refuse the service. Nor could it by the adopted plan of attaching to an acceptance its letter of July 1, 1907, protesting, among other things, “ against the performance of messenger service between post offices and stations at terminal and intermediate points, and between railway stations,” affect the terms of its contract, especially in view of the positive reply thereto by the Postmaster General. It could not and did not impose an obligation upon the Government to pay for a service which the latter insisted, before and after the contracts were made, that the railroad company and not itself should bear under the applicable rules and regulations. An implied contract to pay would not arise under the conditions stated. It was said in Atchison, *Topeka & Santa Fe Ry. case,*225 U. S. 640, 649, that public policy requires that mails shall be carried subject to postal regulations and that, in the absence of a contract, the department and not the railroad shall determine the conditions under which it is carried. The generality of terms of the letter of July 1, 1907, weakens its force as a protest, evbn if otherwise a *“*protest ” could avail. The basis for this protest, against as many as eight independent elements involved in the mail transportation service, is stated to be in view of certain considerations named in the letter, *316none of which, it would seem, were either unlawful or unauthorized — “ the reduction of mail pay.” See *Divisor cases,*53 C. Cls. 258; 251 U. S. 326. “The withdrawal of empty equipment,” *St. Louis, Iron Mt. & Southern Ry. Co. case,*251 U. S. 198; 53 C. Cls. 45; *Atlantic Coast Lime Co.,*251 U. S. 546. “ Method of ascertaining daily average,” *Divisor cases,*and the right to impose “ fines and deductions.” *Louisville & Nashville R. R. Co. case,*53 C. Cls. 238. See *Kansas Gity Southern Ry. Co. case,*252 U. S. 147.

But a protest is not sufficient to create a right. The theory that, if there was some kind of compulsion or duress under which a particular expense is incurred, there is a right of action against the Government to recover such expense overlooks the fact that the recovery, if any, must be based upon contract, express or implied. In the *Gibbons case,*8 Wall. 269, 273, it was claimed that oats had been delivered under duress, the Government contending they were delivered under an existing contract. The Supreme Court say that if the alleged contract was the result of duress, there would be no contract, and if the plaintiff’s consent was voluntary, then the contract to which he assented was binding, and add: “ The quartermaster treated the contract as still in force and his demand on the plaintiff was made under that idea. In this he was wrong. But the plaintiff had his option to concur in this view and deliver the balance of the oats or to refuse to deliver any more.” In the case of *Holland-America Line,*254 IT. S. 148, it appeared that the United States had furnished certain maintenance and medical care to some aliens brought to this country by the plaintiff’s ships, and presented bills for the cost thereof to the plaintiff, which the latter refused to pay until threatened by the immigration authorities that if the bills were not paid thereafter all aliens would be left aboard the vessels until their admission should be finally adjudicated, and in one instance the threats were actually carried out. It was alleged that this course would delay plaintiff’s vessels for periods varying from a few days to several weeks, and that consequently “ the petitioner paid, under duress and involuntarily, the bills when rendered.” It sued to recover these payments. The court held (p. 155) that the action sounded in tort. We have in *317the late case of *Charles Nelson Co.,*56 C. Cls. 448, 457, had occasion, to consider the effect of a protest against the demand to furnish certain lumber where the Government insisted that it had the right to order additional quantities and the contractor insisted that his contract was performed by the delivery of a smaller quantity. He did, however, continue to make deliveries upon the Government’s insistence and sued for these alleged excess amounts. In the opinion by Judge Downey it is said:

“And having furnished additional quantities in compliance with orders specifically predicated on the contract, it can not while complying with such orders create or preserve by so-called protests a right to additional compensation over and above the contract price. We have so held in the recent case of *Willard, Sutherland & Co.,*56 C. Cls., 413.”

The principle of these cases is applicable here. The plaintiff could not continue the service which the Post Office Department contended was included within the contract and then predicate an action on the fact that it protested against being required to perform. Its remedy was in a refusal to perform. This observation is the more applicable to the claim of the Chicago & Alton Railroad Company, whose contracts were made in 1907 and after, because the service complained of was rendered with full knowledge, when the several contracts were made, that the department construed the rules and regulations as providing for it. As was said by Judge Richardson in *Texas & Pacific Ry. Co.,*28 C. Cls. 379, 390, “ The contract could not be changed by complaints and protests. It would be a novel principle to introduce into the law of contracts that a contractor for continuous service at agreed prices can raise the price by complaining of the injustice of the contract, while still performing the service and regularly taking pay according to contract price.” The case of *Chicago & Alton R. R. Co.,*48 C. Cls. 149, is not in conflict with what we hold in the present case. In that case the court refused to allow compensation for the period 1903-1907, because there was a contract, just as we decline to do in the instant case because there were contracts. But in the other case it appeared that when the existing contract had expired the company refused *318to contract with reference to a route making Jefferson City the terminus and requested that the route be ended at South Cedar City, the end of the company’s line. This declination occurred on May 9, 1907, before the date of the commencement of the proposed new contract July 1, 1907. Again, on June 5th it wrote the department, but had no reply to either of its letters. The opinion states (p. 160) : “ Plaintiff, expecting a new and satisfactory arrangement to be made, continued to carry the mails to Jefferson City until October 1, 1907 that in July it wrote the department that it would not convey the mails across the Missouri River to Jefferson City, except it be paid the amount required of it by the bridge company for such service, but to this last letter the department replied insisting that Jefferson City should be the terminus. Thereupon, in September, the company informed the department that on October 1st it would cease the carrying of mail across the river, and following this the department acceded to the view that the route should end at South Clear City and “ forwarded to plaintiff a new form of contract, agreeing with said order.” The question was upon the company’s right to recover for the service between July 1 and October 1. In the opinion by Judge Atkinson it is said (p. 161) :

“ It is therefore apparent that there was no contract, either express or implied, for carrying the mails on said route from July 1 to October 1, 1907, and that plaintiff company rendered the service under compulsion as a public necessity, and it should in all good conscience be paid therefor.

“From the facts set out in the findings and considering the postal laws and regulations involved in the case, we decide that the claim for additional compensation for the quadrennial period from July 1,1903, to July 1, 1907, which was covered by an express contract, can not be allowed; but the claim of $100 for the period from July 1 to October 1, 1907, for which time no contract existed, should be paid, less the sum of $24.53 already paid, which would be $75.47, and judgment against the United States is accordingly rendered for said amount.”

Plainly the controlling reason for the ruling was that, in the one period, there was a contract, and for the shorter period, during which the service was rendered with full knowledge of the department, there was no contract, and the *319court’s judgment was for tbe ascertained value of the service upon the whole route, and not for the specific service across the river.

Involved also in plaintiff’s contention is the proper construction of the applicable postal regulations. Confessedly the railroad company was bound to handle mails arriving or departing from Kush Hill in the daytime. The station and post office were about 300 feet apart. So also it is conceded that if the company maintained an agent and kept open its office during the night it would have to provide for the mails incoming and outgoing during the night as well as during the day. If the station had been more than eighty rods from the post office the department would have been bound to handle the mails to and from the trains during night and day. By paragraph 2 of section 1191 of the regulations provision was made for the railroad company taking the mails from and delivering them into all intermediate offices “ not more than 80 rods from the nearest railroad station at which the company has an agent or other representative employed,” and the nest paragraph provides that the department will provide for carriage - of the mails to and from intermediate post offices and postal stations located more than 80 rods from the nearest railroad station, and further that the department shall provide for the carriage “ to and from intermediate post offices and postal stations located 80 rods or less from the railroad station when the railroad company has no agent or other representative employed at such station.” Can it be maintained that it was the company’s duty to look after the mails during the day, but that during the night it was the department’s duty, because an agent was employed during the day but not during the night ? We think not. There is nothing in the regulations from which such a result can be deduced, and it would be an unreasonable deduction from the facts. 'Section 1196 of the regulations provides that the railroad company must retain custody of it “ whenever the mail on any railroad route arrives at a late hour of the night,” and section 1197 provides that when a train departs from a railroad station in the nighttime later than 9 o’clock, “ and it is deemed necessary to have the mail dispatched by such train,” the division *320superintendent of the Railway Mail Service “will, where mail is taken from and delivered into the post office by the railroad company,” request the company to take the mail to the railroad station at such time as will best serve the interest of the mail service. “ Such mail will be taken charge of by the agent or other representative of the railroad company, who will be required to keep it in some secure place until the train arrives, and then see that it is properly dispatched.” .These provisions are inconsistent with the idea that only the department was bound to look after the mails at intermediate points during the nighttime. The train schedules and stops are usually regulated by the railroad company. The fastest trains are frequently limited and pass through important towns without stops, night or day. Naturally in the development of a proper mail service the mails may be transported on these limited or fast trains. A device for catching the mail bag is used and the mail is thus taken on as the train speeds by, and that designed for the particular station is thrown off in sacks. If the train arrives after 9 o’clock in the nighttime the department could require the company to take charge of the mails, “ and then see that it is properly dispatched” (sec. 1197), where the distance between post office and station was 80 rods or less, and provided an agent was employed at the station. The employment of an agent referred to in the regulation is not confined to day and night service by an agent at the station, but to the fact that an agent is employed during the day or night.

It is not to be assumed that the regulations, which are so specific in most particulars, in provisions for the handling of mails by the company when the post office and station are 80 rods or less away from the station, where an agent is employed, do not provide for the frequently recurring case of a dispatch and receipt of mails by and from the fast night trains making a few stops. Certainly the plaintiff employed an agent at Rush Hill, and thus comes within the letter of the regulations, and, as we think, it comes within the meaning of them as well. The result must, therefore, be the same whether the conclusion be rested upon *321these considerations or upon those above suggested as to the inefficacy of the supposed protest or compulsion.

The original petition claims compensation for night messenger service during each of the years from June, 1905, to the filing of the petition in June, 1911. What is designated by plaintiff as an “ amended petition ” was filed in January, 1920, nearly nine years after the filing of the original. This “ amended petition ” claims compensation for night messenger service during each of the years from June, 1905, to June, 1917.

A question of practice thus is presented, and also the proper application of the statute of limitations. This statute is jurisdictional in the Court of Claims, and unless a petition is filed within six years from the accrual of the cause of action the claim is barred.

The rules of court provide for amendments and are liberal in that regard. They require, however, that where material amendments are proposed an amended petition shall be filed, and this, when properly filed, takes the place of and supersedes the original or the petition sought to be amended. Where the purpose is to claim items arising upon or growing out of the contract sued upon since the bringing of the action it is usual to file one or more supplemental petitions making the additional claims, if upon seasonable application the filing be allowed.

In the instant case the original petition based the claim upon the contention that the two contracts of June, 1903, and June, 1907, did not require performance of the mail messenger service alleged to have been performed. An amendment of the petition would properly, therefore, relate to the effect of these two contracts. In June, 1911, and again in June, 1915 (each four years), a new contract was made, and whether the mail messenger service was to be performed under such later contracts would be determined from them in connection, of course, with the rules and regulations of the department governing the transaction. In other words, there were quadrennial contracts of 1903, 1907, 1911, and 1915, and the rights and defenses are not necessarily the same under each, because if the defendant insisted *322that under the contract of 1903 and the regulations there was a duty on plaintiff to handle the mails at night, and the plaintiff took the opposite view, then plainly the matter should have been corrected in the subsequent contract, and if plaintiff made the new contract with full knowledge of the department’s construction of the prior one it could not by a mere objection or protest save a right which its contract should have protected.

If the petition of 1920 were the original petition it is plain that the plaintiff, if entitled to recover, would be limited to items accruing within the six years next preceding its filing. It is equally plain that under the original petition of 1911 there could not be a recovery for items accruing after its filing unless there were additional pleadings. The petition of 1920 could not reach back of six years, there being nothing to bridge the gap between 1911 and 1914.

The plaintiff could have asked leave to file supplemental petitions after suit brought in 1911, or it could have filed independent petitions and asked that the cases be heard together, or that they be consolidated. The court would then determine its proper course. We have held that a consolidation will not be allowed for the sole purpose of providing an appealable amount. The filing of an amended petition that will cover items barred by the statute is not allowable unless the items have been properly protected by supplemental petitions or amendments. The plaintiff’s original petition was considered upon demurrer, along with several other cases involving the same general question, in November, 1918. The demurrer was sustained and the petition dismissed, but the order of dismissal was set aside in February, 1919, upon plaintiff’s motion, alleging that under the rules leave to amend should have been 'given. The amended petition was filed in January, 1920. *A*demurrer to this amended petition questioned the items arising more than six years prior to its filing. The court, deeming it best to make a finding of facts, overruled the demurrer without prejudice to any question of law that would arise in the case.

• We are referred to two *cases*— Cafe *Ann Granite*Co., 20 C. Cls. 1, and *Buck's*case, 25 C. Cls. 120 — both of which are unlike the instant case in their facts. In these cases the *323amendments in one case and an amended petition in the other were filed within sis years after the original. In the first case the amendments were in the nature of supplements, setting up claims arising out of a continuing contract. In the other an amended petition set up the entire claim, including that in the original, the later items arising within six years as stated. What is said in those cases under the facts established is not questioned, but it was not supposed that the court, by allowing an amended petition, could supplant the statute of limitations, which is jurisdictional. In a case like the present one the proper course for a plaintiff is to file either a new suit or have leave to file one or more supplemental petitions. If a new petition is filed, application to consolidate or to hear the cases together can then be made. Giving the utmost effect to plaintiff’s pleadings it is apparent that its original petition covers items for six years prior to June, 1911, and the “ amended ” petition covers items within six years of its filirig, and neither of them bridges the gap between 1911 and 1914. However, the plaintiff can not recover in any event, in our view.

The petition should be dismissed. And it is so ordered.

Hat, *Judge;*Graham, *Judge;*DowNet, *Judge;*and Booth, Judge, concur.