#### CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. THE UNITED STATES.

[No. 34192.

Decided January 2, 1923.]

*On the, Proofs.*

*Railroad rates; land-grant deductions.-*— -Discharged and paroled prisoners, discharged and retired officers and enlisted men, and rejected applicants for enlistment are not “ troops ” of the United States within the meaning the land-grant acts. *United States*v. *Union Pacific R. R.,*249 U. S. 354.

*Same; protest.*— Where claims were presented by a railroad company at net land-grant rates, and paid by the Government as presented and payment accepted without protest of any kind by the company there can be no recovery by-the company of such land-grant deductions. *Baltimore & OMo R. R.*and *Oregon-Washington R. R. é Wav. cases,*52 O. Ols. 468 ; 54 C. 01s. 131; 255 U. S. 339.

*The Reporter's*statement of the case:

*Mr. Sidney F. Taliaferro*for the plaintiff. *Messrs. Thomas P. Littlepage*and *Daniel Taylor*were on the briefs.

*Mr. Perry W. Howard,*with whom was *Mr. Assistant, A ttorney General Robert Ti.*Lovett, for the defendant.

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

I. The plaintiff, the Chicago, Eock Island & Pacific Eail-way Co., is a consolidated corporation existing under and by virtue of the laws of the States of Illinois and Iowa, respectively, and has so existed from a time prior to the year 1913, excepting for the period during which its property and lines of railway were in the possession of and operated by receivers or a sole receiver, as hereinafter in this finding set out.

On April 20, A. D. 1915, in a case then pending in the United States District Court for the Northern District of Illinois, and in appropriate ancillary proceedings, orders were entered appointing Jacob M. Dickinson and Henry U. Mudge receivers of all the properties of the Chicago, Eock Island & Pacific Eailway Co., including its lines of railway. On September 28, 1915, orders were entered therein accept*34ing the resignation of Henry U. Mudge as receiver, to take effect as of September 30, 1915, continuing Jacob M. Dickinson as sole receiver and investing said sole receiver with all the power and authority theretofore conferred upon the receivers by said orders entered April 20, 1915. Said properties and said lines of railway were in the possession of and operated by said receivers until September 30, 1915,. and thereafter were in the possession of and operated by the said sole receiver until midnight of June 24, 1917, at which time, by appropriate court orders, said properties and said, lines of railway were transferred and surrendered to the-Chicago, Eock Island & Pacific Eailway Co.

It is a common carrier of passengers for hire, and operates various lines of railroad in various States of the United States and, either directly over its own lines or in conjunction with connecting carriers, between all the points referred to in the petition and exhibits thereto attached, filed in this-case.

II. During the years 1913,1914,1915, and 1916 the plaintiff' company and said receivers transported numbers of various classes of persons hereinafter referred to, on transportation requests issued by the War Department of the United States, on each of which requests was shown the status of the- person to whom issued. Said requests are not in evidence, neither is there any detailed statement as to each thereof.

The transportation was all of such classes of persons as-were then held to be “ troops ” of the United States and for whose travel on Government requests the United' States was held to be entitled to land-grant rates, and disbursing officers of the Army were not authorized to pay bills therefor except at such rates. Plaintiff, knowing these facts and to procure settlement to the extent that disbursing officers were authorized to pay, rendered its bills to disbursing officers on prescribed voucher forms showing gross rate, land-grant deduction, and net rate and received payment at net land-grant rates, but for the most part it endorsed upon said bills a protest or a statement of nonacquiescence in- the application, of land grant.

The various items of transportation, with a statement of" (be. gross tariff rate, the amount of land-grant deduction.. *35and the net amount received under protest, are set out in four exhibits attached to plaintiff’s petition marked “Exhibit A,” “Exhibit B,” “Exhibit'C,” and “Exhibit D,” which exhibits are the basis of an official report by the Auditor for the War Department, made a part of the record herein. The status of the traveler is not shown in connection with the items of said exhibits.

III. Exhibit A embraces a total deduction of $937.44 on account of land grant. Of this amount $88.08 was on account of travel of guards with prisoners; $11.62 was on account of travel of guards returning to stations: $14.65 was on account of travel of soldiers absent without leave returning to proper stations: and $44.62 was on account of travel of released prisoners returning to proper stations. Otherwise the status of the traveler is not shown. The amounts involved, with the exception of one item of $5.14, were charged against the pay of “ the soldiers concerned.”

Twenty-five of the bills included in Exhibit A as to which the land-grant deduction amounted to $403.95 were presented at land-grant rates and paid as presented and payment accepted without any protest by the plaintiff or any assertion of any right to other or different compensation.

IY. The. transportation involved in plaintiff’s Exhibit B as to which the land-grant deduction amounted to $576.29 was of discharged and paroled general prisoners.

That involved in Exhibit C as to which the land-grant deduction was $503.53 was of discharged and retired officers and men: $7.10 of this ammint is waived.

That involved in Exhibit C as to which the land-grant deduction was $130.56 was of rejected applicants for enlistment.

MEMORANDUM

BY THE COURT.

The right to recover on account of the travel referred to in Finding IY is conceded. *United States*v. *Union Pacific R. R.*Co., 249 U. S. 354.

As to the travel involved in plaintiff’s Exhibit A and referred to in Finding III the following suggestions are pertinent:

*361. The status of the persons partially shown. The court can not determine the question involved when the status of the traveler is not shown and the burden is on the plaintiff.

2. Officers or enlisted men actually in service in the Army of the United States are “ troops ” of the United States when traveling on official business under competent order, even though not traveling' with the organization to which they belong. An officer or enlisted man performing duty as a guard and traveling as such, under competent order, with a prisoner in his custody is entitled to travel as “ troops ” of the United States.

3. Whether expense of travel performed by a guard and his prisoner is or is not charged against the prisoner as a part of the penalty inflicted upon him or otherwise can not of itself affect the status of the guard or impair the rights of the Government as between it and the carrier.

4. There can be no recovery on account of the transportation as to which claims were presented at net land-grant rates, payment made of the claims as presented, and payment accepted without any protest of any kind. *B. & O.*and *Oregon-Washington cases,*52 C. Cls. 468; 54 C. Cls. 131; 255 U. S. 339.

5. Exhibit A justifies the inference that some part of the claims involved are barred by the statute of limitations. That suit was commenced within six years after the cause of action accrued is jurisdictional in this court.

6. If a right of recovery exists as to any part of the travel involved in Exhibit A the necessary facts do not appear.

Judgment for plaintiff in the sum of $1,203.28.