#### THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY v. THE UNITED STATES.

[No. B-175.

Decided November 5, 1923.]

*On the Proofs.*

*Railroad rates; protest; acquiescence.*— Where transportation services were rendered in March, 1917, and the bill therefor was presented by the Railroad Administration to the accounting officers and a deduction therefrom was made by the Auditor for the War Department by the application of “free baggage” tariffs on October 18, 1919, without protest by the Railroad Administration, and the amount allowed was paid by said Railroad Administration to plaintiff and received by it without protest, and a supplemental claim for the amount so disallowed filed with the General Accounting Office on December 10, 1921, and rejected on the ground of want of jurisdiction, and suit brought in the Court of Claims on August 14, 1922, for said amount, any rights plaintiff may have had were not so preserved as to entitle it to successfully maintain an action.

*616*The Reporter's*statement of the case :

*Mr. Lawrence H. Cake*for the plaintiff. *Britton & Gray*were on the brief.

*Mr. Lisle A. Smith,*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 common carrier by railroad, whose tariffs of charges for the service of transportation are duty published and filed with the Interstate Commerce Commission in accordance with law.

II. At the time of the transportation hereinafter mentioned there were in force on the lines of the plaintiff and other raili’oad carriers with which it connected, being the carriers who furnished the transportation hereinafter mentioned, certain special baggage-car tariffs covering the territory through which the said troops and military impedimenta were moved, which stated in substance and effect the terms and conditions upon which associated travelers traveling on one ticket might become entitled to a baggage car free for the transportation of certain of their effects on the basis generally of one car free to each twenty-five passengers.

III. Prior to January 1, 1917, the plaintiff, with other railroad carriers of the United States, entered into a certain agreement with the United States Government, entitled “ In-terterritorial military arrangement,” on the subject of fares and allowances in connection with the movement of troops, which provided that in connection with the transportation of officers and enlisted men and others connected with the United States Army, United States Navy, and United States Marine Corps, the Government would be allowed a reduction of five per cent from commercial fares less lawful land-grant deductions. It contained, among other provisions, the following :

“ XV.

“ BAGGAGE.

“(1) One hundred and fifty (150) pounds of personal effects, property checkable as baggage, under the tariff of *617the initial carrier, will be transported without charge for each person. Personal baggage in excess of the free allow- • anee 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 request 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. 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.

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

The said agreement was effective beginning January 1, 1917, and throughout the year 1917.

. IV. In March, 1917, the plaintiff, in connection with other carriers by railroad, carried for the United States Government, pursuant to Government bill of lading, from McAllen, Texas, to Buffalo, New York, certain troop and camp property, described as “military impedimenta,” the property of the United States.

V. For the said transportation claim was presented to the accounting officers of the Treasury Department for eleven hundred fifty-one dollars and fifty-four cents ($1,151.54), on the basis of freight tariff rates less land-grant deductions, and settlement by the Auditor for the War Department by certificate No. 45962, dated October 18, 1919, was effected in the sum of eight hundred sixty-one dollars and three cents ($861.03), disallowing two hundred ninety dollars and fifty-one cents ($290.51), the difference being due to revision on account of the application of the so-called “ free-baggage ” tariffs.

VI. The bill mentioned in Finding V, *swpra,*on account of the service stated in Finding IV, *supra,*was rendered by the United States Railroad Administration; the settlement was made by the Auditor for the War Department with the United States Railroad Administration and pay*618ment made to tbe United States Railroad Administration of the amount allowed as stated in Finding V.

YII. So far as appears of record the Railroad Administration accepted the amount allowed by the auditor on its said bill without protest as to the disallowance of $290.51 thereof and the. amount allowed and paid to the Railroad Administration was in due course received by the plaintiff company.

On December 10, 1921, there was filed with the War Department Division of the General Accounting Office a bill of the plaintiff, supplemental to said bill settled by the auditor on October 18, 1919, for $354.79, being said sum of $290.51 disallowed by the auditor and additional items not now claimed herein. The General Accounting Office citing established accounting principles held, on December 20, 1921, it had no jurisdiction to consider the claim and it was dismissed.

This suit was commenced August 14, 1922.

MEMORANDUM BY THE COURT.

The claim is for the disallowed portion of a bill presented by the Railroad Administration for transportation services rendered by the plaintiff company in March, 1917.

So far as.appears, the Railroad Administration did not protest the disallowance, amounting to $295.51, but received the allowed amount, $861.03, and this amount was after-wards received by the plaintiff from the Railroad Administration, just how or when not appearing; neither does it appear that the plaintiff company made any protest against this settlement.

Some time about December 10, 1921, a supplemental claim for the disallowed amount above stated, with other items not now claimed, was filed, said supplemental claim bearing the same number as the original claim and upon a holding by the General Accounting Office that it had no jurisdiction, this suit to recover said sum was commenced August 14, 1922.

In some respects the findings, predicated, except as to Finding YII, on stipulation of the parties, are quite meager. *619And it is noted that no information is furnished as to any settlement between the plaintiff and the Director General of Railroads. Under the facts stated we can find no satisfactory basis for a conclusion that any right was so preserved to the plaintiff as to enable it to successfully maintain this action. The petition is dismissed.

See also Atchison, *Topeka c& Santa Fe case*decided this day, *ante,*p. 583.