#### CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY v. THE UNITED STATES.

[No. 33864.

Decided November 13, 1922.]

*On the Proofs.*

*Transportation of Government property; land-grant*deductions.— Where an act of Congress grants public lands to a railroad company in aid of its construction and provides that such railroad shall transport any property or troops of the United States free of charge, such railroad company is not entitled to compensation for transportation of Government property or troops, unless it has been relieved of its obligation by a subsequent act.

*Transportation of private property Toy Government order; land-grant deductions.*— Where private property is transported by order of Government officers, and bills are presented to the Government with land-grant deductions, and the same are paid as presented and payment is received by the company without protest, there is no liability on the Government to pay such land-grant deductions.

*570*The Reporter's*statement of tlie case:

*Mr. Benjamin Garter*for the plaintiff.

*Messrs. Lisle A. Smith*and *Charles F. Jones,*with whom was *Mr. Assistant Attorney General Robert II. 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 Wisconsin. It operates and at the times hereinafter stated did operate a system¡ of railways in said State and other States.

II. A number of plaintiff’s lines of.railway were constructed by the aid of the lands granted by an act of Congress containing the following clause: “The said railroad shall be and remain a public highway for the use of the Government of the United States free of all toll or other charge upon the transportation of any property or troops of the United States.” (Act of May 12, 1864, sec. 8.)

III. Two of plaintiff’s lines of railway, (1) from Plastings to Ortonville and (2) from Houston to Airlie, were constructed with the aid of public lands granted by Congress under the act of July 4, 1866, section 3 of which contains the following clause: “The said railroad shall be and remain a public highway for the use of the Government of the United States, free of all toll or other charges upon the transportation of any property or troops of the United States, and the same shall at all times be transported at the cost, charge, and expense in all respects of the company or corporation, or their successors or assigns, having or receiving the benefits of the land grants herein made.”

IY. Some of said consignments consisted of coals for the use of Indian schools. The shipments were from mines in Illinois to schools at Standing Pock Agency or Wahpeton, in North Dakota; Greenwood, Yankton, Flandreau, in South Dakota; or Pipestone, in Minnesota. The coals so shipped were obtained under three contracts of the dates *571respectively stated, viz, (1) contract of the Commissioner of Indian Affairs with the Northwestern Fuel Company, July 9, 1909; (2) contract of the Commissioner of Indian Affairs with Dennison Y. Smith, October 8, 1910; (8) contract of the superintendent at Wahpeton with the Berwind Fuel Company, September 5, 1910. By each of said contracts the price named was to apply free on board cars at the mines, but each contract provided that rigid inspection of the coal should be made at places and by person to be designated by the contracting officer of the Government, and if any of the supplies should fail to conform with samples furnished the same should be rejected and the other party should remove the same from the Government premises. Inspectors were appointed as so provided, and by designation and direction of said officers of the Government they inspected the coals at said points of designation; and before payments were made for any coals accepted certificates of such inspection and ajiproval were made by said inspectors.

Y. Others of said consignments consisted of coals for quartermaster uses at Fort Snelling, Minnesota; the same being obtained by a contract of the United States quartermaster at St. Paul, Minnesota, with Orerar, Clinch & Co., signed in 1912, and shipments being from mines at Clinch, in Illinois. The price named applied at the mines, free on board cars, but the contract provided that the coals should be subject to “inspection and acceptance or rejection by receiving quartermaster at final destination.” Samples were in fact taken and inspection made, and thus acceptance or rejection of the coal determined at Fort Snelling.

VI. Others of said consignments consisted of coal, sand, and cement delivered at Minnehaha, Minnesota, for engineering use on a lock and dam improvement, the same being obtained by contracts of the district engineer of the Corps of Engineers of the Army having his office at St. Paul, Minnesota, with divers persons. Prices were named in said contracts for delivery on board cars at points of shipment, but it was provided that inspection of all of said *572materials should be made in Minnehaha by Government officers to determine acceptance or rejection thereof. Successive and exhaustive tests of cement were in fact made, and the coal and sand were visually inspected by the Government’s officers at the site of the work, and there were some rejections both of cement and of coal, and the contractors wei*e required to remove and did remove such rejected materials from the site of the work.

VII. Others of said consignments consisted of piling and other lumber for said engineering improvement at Minne-haha obtained by said district engineer at St. Paul, or for harbor improvements near Racine, Wisconsin, obtained by the district engineer of said corps at Milwaukee, Wisconsin. Said materials were furnished under contract with numerous millers in the State of Washington. By arrangement of said engineers the contracts were negotiated by the district engineer of said corps at Seattle, Washington. The contracts provided for inspection of the materials at the mills, upon or before the loading onto cars. Such inspection was in fact made at those points by attaches of said Seattle offine and the results thereof were certified to said district offices at St. Paul and Milwaukee. No inspection was provided for, and none was made, at the points of destination except to determine that the true quantities of the several shapes and dimensions made were furnished.

VIII. Others of said consignments consisted of piling and other lumber obtained by the district engineer of said corps at Kansas City, Missouri, from various millers in the State of Oregon for use in the improvement of the Missouri River at points near Sioux City, Iowa. Bids were received in answer to invitation which prescribed that prices should be named for delivery free on board cars at points of shipment. The agreements contained the following clauses: “ The prices will be for the articles delivered f. o. b. cars at -. The successful bidder will procure the cars, but the United States will pay the freight and furnish shipping instructions and bills of lading. This arrangement is made to enable the Government to take advantage of land-grant rates, and will not operate to relieve the dealer of any of *573the responsibilities as shipper that would attach if the delivery had been at destination.”

IX. Others of said consignment consisted of piling and other lumber obtained by the district engineer of said corps at Chicago, Illinois, for improvement of the Calumet River near Chicago under contracts with the Douglas Fir Sales Co., and the Union Lumber Co. The invitations for bids prescribed that prices be named for delivery free on board at points of shipment. The contracts contained the following clause:

“Aet.2. All materials furnished and work' done under this contract shall be subject to a rigid inspection by an inspector appointed on the part of the United States, and such as do not conform to the specifications of this contract shall be rejected. The decision of the contracting officer as to quality and quantity shall be final.”

“ Aet. 9. Until final inspection and acceptance of and payment for all of the material and work herein provided for, no prior inspection, payment, or act is to be construed as a waiver of the right of the contracting officer to reject any defective work or material or to require the fulfillment of any of the terms of the contract.”

The supplies furnished under said contracts were inspected upon delivery at Chicago by officers of the Government with respect to qualities before acceptance.

X. It is not shown whether the plaintiff, when said freights were received and transported and when its bills were rendered and payment received, was or was not informed of the conditions of the contract or orders with reference to inspection and acceptance or rejection at point of destination, or when, if thereafter, it was so informed.

XI. In every instance the plaintiff’s bills were presented to the Government for payment of the net freight for the transportation of said coal, sand, cement, and other articles after the proper land-grant deductions had been made by the plaintiff in stating its bills, and payment was made to the plaintiff of the full amount claimed on that basis and accepted without protest.

XII. The Government form of bills of lading used in the transportation of the articles in question provided on its face *574for the hauling of Government property only, and the directions on the back of same limited their use to Government . property. The agreement on the back of the same between the United States and the carrier stipulated that the prepayment of charges should in no case be demanded by the carrier nor should collection be made from the consignee; on presentation to the office indicated on the face of the bill of lading, properly accomplished, attached to freight voucher prepared on authorized Government form, payment would be made to the last carrier unless otherwise specifically stipulated the shipment was to be made at the restricted or limited valuation specified in the tariff or classification, at or under, on which the lowest rate would be available unless otherwise indicated on the face of the bill of lading.

XIII. The only land-grant deductions made on account of transportations over lines in Minnesota extending from Hastings or Ortonville and from Houston to Airlie are from the following bills and in the amounts therein shown:

rg-Bill. Deduction. 13. 16. 30. 30. 30. 8710 8980 11485 11592 11700 $44.61 66.91 20.32 41.10 63.75 Bill. Deduction. 11823 11956 12035 12020 7650 $138.90 119.22 22.56 137.03 13.08

XIV. It does not accurately appear in the record what the amount is which the plaintiff is claiming. Various items claimed are referred to in the record, but they are not proved.

Hay, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of about $53,000, which it claims was improperly withheld from it by reason of the application of land-grant freight rates to shipments on Govermnent bills of lading.

The gravamen of the plaintiff’s complaint is that the property which was shipped over its lines was not Government property, but was property belonging to private persons, and was therefore not subject to land-grant deductions. The evidence in the case discloses that in every in*575stance the property belonged to the Government, and therefore the plaintiff is not entitled to recover.

As to two items of the claim amounting to $334.75, the difference between 50 per cent and 100 per cent land-grant on Government property transported over its two lines of railway from Hastings to Ortonville and Houston to Airlie in the State of Minnesota, it is contended by the plaintiff that it only ought to be charged with 50 per cent land-grant, whereas it has been charged with 100 per cent land-grant deduction.

The act under which the two lines referred to received Government aid to lands reads as follows: “ That said railroad shall be and remain a public highway for the use of the Government of the United States free of all toll or other charge upon the transportation of any property or troops of the United States, and the same shall at all times be transported at the cost, charge, and .expense in all respects of the company or corporation, or their successors or assigns having or receiving the benefits of the land grants herein made.” Act of Congress, approved July 4,1866,14 Stat. 88.

Under the provisions of this statute Government property was to be transported over these roads free of charge. ' It does not appear that Congress has since the enactment of this law passed any statute which will relieve the plaintiff from its obligation to transport Government property free of charge. It is true that the plaintiff refers us to an act approved October 6, 1917, 40 Stat. 361, which might be construed to relieve the plaintiff of its obligation if the shipments in question had been made during the emergency for which the act provided, but the shipments were made long before that time, and the act expressly provides that it “ shall not be construed as changing in any other way or for any other period of time the rights and duties of the land-grant railroads.”

The plaintiff also refers to the transportation act of February 28, 1920, 41 Stat. 456. The petition of the plaintiff was filed October 29, 1917, and all the transactions, and the claims arising from them, were had prior to the passage of the act. The act of 1920 can not be invoked on behalf of claims arising long befqre the passage of the act.

*576In view of what has been said it is hardly necessary to refer to the fact that the bills of the plaintiff were presented to the officers of the Government with land-grant deductions, were paid as presented, and payment of the same was accepted by the' plaintiff without protest. It is not perceived how the plaintiff can now reopen this question of payment, even though the property transported was not the property of the Government, or how if it were not property of the Government the latter could be made liable at all for its transportation without affirmative proof that some agent of the Government was authorized to create a liability for the transportation of property not belonging to the Government.

The petition of the plaintiff must be dismissed. It is so ordered.

Geaham, *Judge,;*Downey. *Judge;*and Campbell, *Chief*Justice, concur.