#### THE ST. LOUIS, KENNETT & SOUTHEASTERN RAILROAD COMPANY v. THE UNITED STATES, AND JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS.1

[No. B-234.

Decided April 30, 1923.]

*On Defendant's Demurrer.*

*Federal control of railroads; just compensation;*jurisdiction.— See *Cairo, Truman & Southern R. R. Co.*v. *United States et al., ante,*p. 336.

*The Reporter's*statement of the case:

*Mr. Sidney F.*Andrews, with whom was *Mr. Assistant Attorney Generad Robert H.*Lovett, for the demurrer. *Messrs. Dwight E. Rorer*and *A. A. McLaughlin*were on the briefs.

*Mr. S. S. AsKbaugh*opposed. *Mr. G. B. Webster*was on the briefs.

The material allegations of the petition, to which defendant demurs, are as follows:

That the plaintiff was and is a common carrier by railroad engaged in interstate commerce; that the President of the United States, under the power granted by an act of Congress approved August 29, 1916, 39 Stat. 645, on December 28, 1917, 40 Stat. 1733, took possession and control of plaintiff’s railroad and immediately appointed a Director General of Railroads, who operated said railroad from said Decem*340ber 28, 1917, to and including the 29th day of June, 1918; that said possession, control, and operation of said railroad as aforesaid was relinquished by the President and the said railroad was returned to the possession of the plaintiff on the said 29th day of June, 1918; that on February 19, 1919, the plaintiff executed a certain contract with the Director General of Kailroads, a correct copy of same being attached to the petition and made part thereof, wherein it appears by section 3 that the plaintiff for certain considerations therein mentioned made a full adjustment, settlement, and satisfaction of its said claim for just compensation, said agreement being in full discharge of any and all claims and rights at law or in equity which it then had or thereafter could have against the United States, the President, the Director General, or any agent or agency thereof by virtue of anything done or omitted pursuant to the acts of Congress therein referred to; that on March 21, 1918, the act of Congress entitled “an act to provide for the operation of transportation systems while under Federal control, for the just compensation of their owners, and for other purposes,” 40 Stat. 451, was approved; by the provisions of said act the United States became liable to the plaintiff for just compensation during said period of alleged Federal operation and control of said railroad; that a demand for such payment has been made on the Director General of Railroads, who has refused to pay the same, whereupon as provided by said Federal control act plaintiff applied to the Interstate Commerce Commission for the appointment of a board of referees to hear said claim; that the said board duly heard the same and on June 14,1922, rejected said claim, from which said finding and decision of said board plaintiff has appealed to this court.

The defendant’s demurrer was- sustained and the petition dismissed,1 with the following

1

 Appealed.

1

*An*amended petition was filed in this ease by permission of the court, defendant’s demurrer was interposed thereto, and on November 5, 1923, the court sustained said demurrer and dismissed the amended petition.

MEMORANDUM

BV THE COURT.

The court’s conclusion is based upon the considerations:

(1) That the jurisdiction of the Court of Claims in cases such as this is conferred by section 3 of the Federal control *341act, 40 Stat. 451. It provides for action by a board of referees and authorizes an agreement by the President with the carrier, and “ failing such agreement ” suit may be brought to determine the amount of just compensation. In the suit thus authorized the report of the referees is *prima, facie*evidence of the amount of compensation and of the facts stated therein. The facts averred in the petition fail to show that the condition precedent contemplated by the statute has been complied with so as to bring the case within the jurisdiction of this court.

(2) That if the court have jurisdiction the agreement, Exhibit A to the petition, concludes any rights the plaintiff might otherwise have.