#### WABASH RAILWAY COMPANY v. THE UNITED STATES.

[No. 34441.

Decided June 12, 1922.]

*On the Proofs.*

*Transportation; land grant deductions; settlement.*— Controlled by rule laid clown in *Baltimore & Ohio R. R. Go. case,*52 C. CIS. 468, and *Oregon-Washimgton Railroad & Nav. Co. case,*54 C. Cls. 131; 255 U. S. 339.

*The Reporter’s*statement of the case:

*Messrs. N. S.*Brown, *L. Jl.*Strasser, and *MoKenney do Flarmery*were on the briefs for the plaintiff.

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

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

I. The plaintiff is a corporation, duly incorporated under the laws of the State of Indiana, and as such corporation now is, and was during all of the times when the services *451hereinafter mentioned were performed, engaged as a common .carrier by railroad in the transportation of passengers and freight in and through various States of the United States and between the points referred to herein, either directly over its own lines or in conj unction with connecting carriers.

II. Under acts of Congress granting lands in aid of railroads and acts of Congress regulating the expenditure of appropriations by the United States for Army transportation over such land-grant railroads, said land-grant railroads were required to transport “ troops of the United States ” at rates of fare lower than charged for like or similar services to persons not connected with the military forces.

III. Prior to and throughout all the times mentioned in plaintiff’s petition and Exhibit A thereto, certain railroad companies, including plaintiff, had severally agreed with the Quartermaster General of the United States Army to accept (subject to certain exceptions not important here) for transportation of “ troops of the United States ” the lowest net cash fare and lowest excess-baggage rate lawfully available, and to be derived by deducting from the published tariff fares and rates on file with the Interstate Commerce Commission in force and applying from point of origin to destination via an usually traveled route for military traffic, a certain amount, percentage, or proportion thereof on account of the so-called land-grant distance or mileage traveled.

Such agreements, commonly known as “land-grant equalization agreements,” were in force at the times of the transactions hereinafter referred to.

IV. During the years 1913. 1914, 1915, and 1916, at the request of proper Government officers and upon duly issued Government transportation requests which showed the status of the person or persons transported, the plaintiff transported certain persons belonging to some of the following classes:

1. Accepted and rejected applicants for enlistment in the Army.

2. Discharged military prisoners.

B. Discharged soldiers.

4. Retired soldiers.

*4525. Furloughed soldiers.

6. Guards with prisoners.

7. Guards returning to stations.

8. Soldiers in active service.

For the said transportation service plaintiff stated and submitted its bills to the United States disbursing officer on the regular prescribed form of Government voucher and on the basis of land-grant deductions in each instance.

The United States, through its disbursing officer, in making settlement for the said transportation service, paid the bills as submitted by plaintiff, and payments were accepted by plaintiff without objection or protest of any kind.

Y. If the bills had been rendered and paid at commercial rates without lawful land-grant deductions, the difference between the amount so ascertained and the amount at which the bills were rendered and paid would be $6,329.23.

memorandum by the court.

This case is controllel by the rule stated in the *Baltimore & Ohio Railroad Company*case, 52 C. Cls. 468, and the *Oregon-Washington Railroad & Navigation Company case,*54 C. Cls. 131; 255 U. S. 339.

The plaintiff submitted its bills to the disbursing officer and they were paid as presented, many of them years ago. There was no mistake of fact made, nor any other reason for not having presented its whole claim then.

In *Oregon-WasMngton Railroad*Company„ sv/pra, the Supreme Court held that in circumstances such as we have here, the railroad company having presented its bills and received payment for them as rendered without protest or objection, though they were for less than the commercial rates, it can not now maintain an action such as has been presented in this case (p. 348).

The petition is dismissed.