#### OREGON-WASHINGTON RAILROAD & NAVIGATION COMPANY v. THE UNITED STATES.

[No. 176-A.

Decided November 19, 1923.]

*On the Proofs.*

*Land-prant deductions ; transportation of private effects of officers.-—*The effects, household goods, etc., and authorized mounts of Army officers on change of station are not Government property within the purview of the land-grant laws, and where railroad companies have presented their bills to disbursing or accounting officers for the transportation of such property at commercial rates and have protested deductions made by the accounting officers on account of land grant, they are entitled to recover the amount of such deductions.

*The Reporter's*statement of the case:

*Messrs. William R.*Harr and *Charles H. Bates*for the plaintiff.

*Mr. Lisle*A. *Smith,*with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

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

I. Plaintiff is a corporation duly organized under the laws of the State of Oregon and as such corporation now is, and was during all the times hereinafter mentioned, engaged as a common carrier in the transportation of passengers and freight in and through various States of the United States, and, through connections with other railroad companies, *646between the points covered by the transportation services referred to herein. No part of the lines operated by plaintiff were constructed with the aid of grants of land by the United States.

II. Under the acts of Congress granting lands in aid of railroads and acts of Congress regulating expenditure of appropriations by the United States for Army transportation over such land-grant railroads, so far as same may be applicable, said land-grant railroads were required to transport troops and munitions of war and property of the United States at a rate not to excéed 50 per cent of the rate paid by private parties for the same kind of service.

III. At and prior to the times when the services hereinafter mentioned were performed, the railroad companies of the United States generally, including plaintiff, had severally agreed with the Quartermaster General of the United States Army to accept for the transportation of property moved by, the Quartermaster Department, United States Army, and for which the United States Government was lawfully entitled to reduced rates over land-grant roads, the lowest net rates lawfully available as derived through deduction account of land-grant distances from a lawful rate filed with the Interstate Commerce Commission applying from point of origin to destination at time of movement.

IY. Under the regulations of the War Department in force at the time hereinafter stated each and every officer of the Army, when changing station, was entitled to the transportation, at the expense of the Government, of a certain weight of household goods or other personal property belonging to him, the weight being graded by his rank, and Army officers, upon assignment to station, or when changing station, were also entitled to transportation, at the expense of the Government, of the number of private mounts for which they were entitled to forage, according to their rank.

Y. During the years 1915 and 1916, the United States, through the Quartermaster’s Department of the Army, shipped as freight over certain railroads — plaintiff in each instance being the last carrier — certain weights of household goods and personal effects and other property of Army offi*647cers of the United States changing station, the shipment in each instance being upon what is known as a *Government*bill of lading, said bills of lading having been furnished by the Quartermaster’s Department of the Army in accordance with a circular letter and forms prescribed and promulgated by the Comptroller of the Treasury and approved by the Secretary of the Treasury under date of October 29, 1907.

VI. In settling for the transportation referred to herein defendant, through its disbursing and accounting officers, made deductions from plaintiff’s bills therefor, rendered at commercial rates, on account of land-grant distance involved, as for “ property of the United States,” and paid plaintiff for such transportation only at the reduced rates provided for shipments of such property.

VII. In every instance the property referred to herein as transported was the private property of an Army officer delivered to the possession of the Army shipping officers for the purpose of transportation only.

VIII. In one instance (B/L 10, May 12, 1915, Del Rio, Tex., to Seattle, Wash., included in plaintiff’s bill FA 167 1/2 G) the shipment consisted of the private mounts of an officer changing station. The land-grant deduction made by the Government accounting officers on this shipment was $34.58.

IX. In every instance plaintiff presented its bills for the transportation involved at full commercial rates, without land-grant deductions, and as to each of the settlements involved herein the plaintiff protested against the requirement of land-grant deductions at the time of the receipt by it of the warrant issued by the Government in payment for such transportation and prior to cashing the- same.

X. The total amount deducted from plaintiff’s bills by the accounting officers of the Government on account of land'grant for the transportation in question was $518.18.

Downey, Judge,

delivered the opinion of the court:

The plaintiff seeks to recover amounts deducted on account of land grant from bills rendered for transportation of Army officers’ effects, household goods, etc., on change of station, and one item for the transportation on change of *648station of an officer’s authorized mounts. The bills were rendered at commercial rates and the settlements at land-grant rates were protested in writing.

The property involved was in all instances the property of the individual and not of the United States, and it is now to be regarded as settled that such property is not in any sense to be regarded as property of the United States for transportation purposes within the provisions of the land-grant acts.

Regulations of the War Department have for many years provided for the transportation at Government expense of an Army officer’s personal effects on change of station, the amount in pounds being related to the rank of the officer, and likewise regulations have provided for the transportation on change of station of a mounted officer’s authorized mounts, the number for which, according to rank, the Government furnishes forage.

Assuming it to be determined that such property is not entitled to transportation at land-grant rates as Government property, the remaining contention is that, although its transportation at Government expense is authorized by regulation, there is no authority of law for the regulations, and that regulations without authority of law can not impose an obligation on the Government. Summarizing, the defendant says that the court is asked to decide that privately owned household goods are the property of the United States for the purpose of fixing Government liability and privately owned by Army officers for the purpose of fixing the amount of the liability.

This latter contention has an element of fallacy in it. Primarily it may be said that the liability of the Government for the transportation of property is limited to the transportation of its own property, but it does not follow that it may not obligate itself for the transportation of other property. And in the service of an Army officer is found abundant reason for doing so.

An Army officer has no fixed station such as is usually the case with civilians. He is subject to orders and must move when directed. Family ties appeal to him as to other men, the maintenance of a home means household goods, and when *649the needs of the service demand his transfer to another station it is but natural to say that, if he be not assigned to furnished quarters, his goods must go with him to his new station. His mounts, such as he must needs use in the performance of his duties, must also accompany him, and all the circumstances but tend to furnish reasons why the Government should in these cases assume an obligation as to the transportation of property not its own.

The prevalence of the practice for so many years under the authority of published and widely promulgated regulations has come to be so much a matter of common knowledge with all having to do with Army affairs that it is almost inconceivable that Congress, legislating each year for the support of the Army, could have been ignorant of the situation or otherwise than of an approving mind. For many years the accounting officers, having to do with the settlement of claims for such transportation have recognized, indeed have not questioned, the liability of the Government. Their contention has been that this class of property when transported on Government bills of lading at the expense of the Government, was *quasi*public property and entitled to be transported at land-grant rates.

It is not intended by these observances to hold or even suggest that the circumstances mentioned can give validity to regulations imposing a liability on the United States. They serve simply to throw some light on legislation to be cited.

As to an officer’s household goods, there is found in the Army appropriation acts under the subhead “Transportation of the Army and its supplies ” among the purposes for which that appropriation is made the words, referring to baggage, “ including the cost of packing and crating,” a duty performed by the shipping officer of the Quartermaster’s Corps as the first step in the transportation of the goods from one station to another, and, immediately following this language there is found in the act of March 23, 1910, 36 Stat. 255, a proviso “ That hereafter baggage in excess of regulation change of station allowances may be shipped with such allowances and reimbursement collected for transportation charges on such excess.”

*650The “ regulation change of station allowances ” could refer only to the allowances, graded according to rank, which were provided for in the regulations of the War Department as the allowances or weights which would be transported at the expense of the Government; and the provision for the collection of reimbursement, from the officer, of course, of the charges on the *excess*leaves no room for doubt as to the assumed obligation of the Government to pay.

Following, in the same act and under the same subhead, it is provided that “hereafter transportation may be furnished for the owned horses of an officer, not exceeding the number authorized by law, from point of purchase to his station, when he would have been entitled to and did not have his authorized number of owned horses shipped upon his last change of station and when the cost of shipment does not exceed that from his old to his new station.”

And in the later act of April 27, 1914, 38 Stat. 365, is found practically the same provision with reference to excess mounts, and subject to the same interpretation, as was written in the former act with reference to excess baggage. It was therein provided, “ That hereafter private mounts of officers in excess of the authorized mounts may be shipped on Government bills of lading with authorized mounts and reimbursement collected for the transportation of such excess mounts.”

In the case of *Illinois Central R. R. Co.*v. *United*States, 52 C. Cls. 52, the transportation of the officers’ mounts was not on change of station, and in Atchison, *Topeka & Santa Fe Ry. Co.*v. *United States,*55 C. Cls. 339, it did not appear that the transportation was on change of station.

Since the Government had lawfully undertaken to furnish the transportation and the property transported was not property of the United States, there was, obligation to pay without right to land-grant deduction, and we have therefore directed judgment for the plaintiff in the sum of $518.18.

Graham,. *Jndge;*Hay, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.