#### BENJAMIN F. BUSH, RECEIVER OF THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. THE UNITED STATES.

[No. 34748.

Decided April 9, 1923.]

*On the Proofs.*

*Railroad rates; classification.*— Where *the*court is called upon *to*make the proper classifications of articles transported under the tariffs of a railroad company, and there is only one classification available, the court will adopt such classification.

*The Reporter’s*statement of the case:

*Mr. F. Garter Pope*for the plaintiff.

*Mr. Lisle A.*Smith, 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. The plaintiff is the receiver of the St. Louis, Iron Mountain & Southern Railway Co., a corporation duly incorporated under the laws of the State of Arkansas, and at the time of the transactions hereinafter set forth in these findings of fact operated a system of railways in said State and other States, doing business as a common carrier of passengers and freight for hire and reward under tariffs in force on its lines and those of its connecting carriers.

II. When the troops and Army impedimenta hereinafter described were transported there were in force on all the *225lines which furnished such transportation special baggage tariffs which covered the territories through which said troops and impedimenta were moved. Said special baggage tariffs provided, in substance and effect, the terms and conditions under which associated travelers traveling on one ticket might become entitled to a baggage car free for the transportation of certain of their effects at the rate of one car free to each (generally) 25 passengers paying full fares.

III. With respect to the articles pertaining to and accompanying bodies of troops, and composed of tents, ambulances, wagons, caissons, ammunition, tools, and other articles peculiar to military impedimenta, and sometimes called company or battalion or regimental “ property ” or “ camp equipment,” it has always been claimed by carriers and conceded by the Quartermaster General of the United States Army that such shipments were essentially freight and were so to be treated in settlements with carriers for their transportation.

For many years the Quartermaster General has issued periodically a publication entitled “ Manual for Quartermaster Corps,” and the edition thereof published and made effective in December, 1916, and still in full force and effect, contains paragraphs 3391, 3441, 3443, 3445, 3453, 3494, 3498, and 3500, which, amongst others, recognize the clear distinction between public property and equipage or Army baggage on the one hand and the .baggage entitled to free transportation, or transportation in the baggage service, on the other hand. A decision of the comptroller of June 18, 1918 (24 Comp. Dec. 774), to effect that under the provisions of carriers’ baggage tariffs the Government was entitled to one car free for every 25 passengers in the accompanying passenger movement was the first notification that the Government claimed one special baggage car or its equivalent for every 25 soldiers traveling with Army impedimenta. Prior to that decision the Government paid for such impedimenta as freight.

IV. Since the decision of the comptroller of June 18, 1918, all disbursing and accounting officers of the Government have made settlements with all carriers upon the basis *226that the United States was entitled to one baggage car free for the transportation of its camp equipment and company property for every 25 officers and enlisted men traveling.

V. Prior to January 1,1917, the plaintiff and all the other lines parties to the interterritorial military arrangements which became effective on that date were parties to agreements, known as military agréments between authorized representatives of the carriers and authorized officers of the War and Navy Departments, which were for the most part similar to and superseded by the later arrangements.

The said interterritorial military arrangement or contract was entered into between the United States Army, Navy, and Marine Corps and the carriers in the territories of the Central Passenger Association, New England Passenger Association, Southeastern Passenger Association, Southwestern Passenger Association, Transcontinental Passenger Association, Trunk Line Association, and Western Passenger Association, to become effective January 1, 1917, and to supersede and cancel all previous interterritorial arrangements between the same parties, the material and relevant parts of which are as follows:

"III.

“ *Traffic covered, T>y this arrangement.*— The net fares, allowances, and routes in connection therewith authorized hereunder are applicable exclusively for the transportation of officers, enlisted men, and others connected with the United States Army, United States Navy, and United States Marine Corps, for whom the United States Government is lawfully entitled thereto, and when traveling on transportation requests of the issues of the United States Army, United States Navy, and United States Marine Corps, and at the United States Government expense only.

"IV.

“ *Net fares and allowances.*— (1) *(a)*The fares applicable under this arrangement will be the lawful commercial fares as on file with the Interstate Commerce Commission from starting point to destination at time of movement (see exceptions, Section V), less lawful land-grant deductions properly established, less five per cent (5%), the five per cent allowance not to exceed the maximum allowances or *227exceptions as specified in Section VI. Government fares so established will apply to all military traffic as described in Section III, including special train and special car movements as well as individual and party movements (see Section XI).

“(5) Proportions will not be used in any case in the construction of fares.

# *%** * *% * **

"XI.

“When special cars or special trains are furnished hereunder, not less than the minimum number of fares for such special cars or special trains will be required.

*“*xv.

“ *Baggage.*— (1) One hundred and fifty (150) pounds of personal effects, properly checkable as baggage, under the tariff of the initial carrier, will be transported without charge for each person. Personal baggage in excess of the free allowance 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.

"XX.

“ *Termination of arrangement.-*— -It is understood that this arrangement may be terminated at the pleasure of the United States Army, United States Navy, and United States Marine Corps, independently of each other, and the withdrawal from the arrangement of one of these branches of the Government will in no way affect the operation of the arrangement as to the other branches of the Government electing to continue it; the reservation being made, however,, *228that the carriers may withdraw from the arrangement at their option.”

VI. The interterritorial military arrangement effective July 1,1916, which was superseded by the similar agreement effective January 1, 1917, referred to in Finding V, was indorsed by the comptroller in a letter to the Secretary of War, dated May 20, 1916, which, among other things, contained the following:

“ 9. This agreement is considered advantageous to the Government for the following reasons: *(a)*It will result in a saving of Government funds. (5) It will procure cooperation on the part of the railroads, (c) It will facilitate the settlement of accounts.”

On March 3, 1917, the Quartermaster General, with the approval of the Secretary of War, ordered copies of said in-terterritorial military arrangements to be forwarded to different officers throughout the country concerned with the movement of troops, with the statement that “ the new arrangements are along the same lines as the old ones; some disputed points have been cleared up and are therefore published in the new arrangement.”

On September 15, 1917, all department, depot, and camp quartermasters were notified by the Quartermaster General that:

“ 1. It is desired that all shipping quartermasters be instructed that camp equipment and impedimenta will not be carried as checkable baggage, and that checkable baggage includes only wearing apparel and related articles ordinarily carried in a trunk by a commercial traveler.”

Copies of said interterritorial military arrangement were distributed to all quartermasters between February 28, 1917, and March 3, 1917.

VII. The said interterritorial military arrangement was in full force and effect as late as May 20, 1920, and its provisions have been observed by the carriers generally. Under the terms of said arrangement the Government has paid for transportation at rates substantially 5 per cent less than it otherwise would have paid.

VIII. On February 2, 1917, the plaintiff and other connecting carriers transported a movement of United States troops from Deming, N. Mex., to Little Kock, Ark., a ter*229minal on plaintiff’s lines. The troops were carried on regular Government transportation requests at rates substantially 5 per cent .less than the regular tariff rates open to the general public, and the military impedimenta was moved as freight on Government bill of lading WQr63.

IX. The tariff in force on plaintiff’s lines and those of its connecting carriers at the time of said movement on February 2, 1917, open to the public at large, was Western Classification No. 54,' I. C. C. No. 12, and neither camp equipage, military impedimenta, nor company property was specifically embraced therein; nor were they included as articles “ N. O. I. B. N.” (not otherwise indexed by name). The following provision was, however, contained in Western Classification No. 54:

Graders’, bridge builders, and contractors’ outfits, second-hand, straight or mixed, L. O. L.-C. L., O. Ii., min. wt. 24,000 lbs__ClassA.

The rule governing the carriers parties to the said movement provided that when articles were offered for transportation and were not specifically provided for nor embraced in the classification as articles “ N. O. I. B. N.” (not otherwise indexed by name), said carriers should apply the classification provided for articles which, in their judgment, were analogous. The initials N. O. I. B. N. (not otherwise indexed by name) mean that when an article has been indexed in a tariff by a generic name only, such as “ dry goods,” and blankets, which are not indexed, are offered for shipment, they will be given the classification and rating of “ dry goods.”

At the time of said movement there was a published circular of information entitled “Transcontinental Freight Bureau Government Bate Circular No. 51-B ” in use, purporting to show bases for the computation of rates on freight for the United States Government bills of lading within the territory in which said movement took place, said circular being issued July 27, 1916, by B. H. Countiss as agent for the lines party to the said movement and made effective August 1, 1916. Said Circular No. 51-B contained among other things the following special rules:

“Beductions in weight. 3. It will not be permissible for agents to sign any contract which provides for a reduction *230from the weight shown in Government bills of lading by the allowance for each soldier-passenger of ISO pounds of free baggage or impedimenta or the acceptance of Government bills of lading bearing such notation.

“Camp equipage. 4. Camp equipage and impedimenta (carloads), for freight-train service, will be the 3d class commercial rate, minimum weight 20,000 lbs., without deduction for bond-aid or land-grant roads.

* * * * * * *

“Bills of lading. 8. Eates and bases named in circular will apply only on shipments moving under Government bills of lading.”

Circular No. 51-B contains also the following provision:

“The rates applicable on freight moving under United States Government bills of lading are based on the established tariff rates, and when the commercial tariff rate applicable on a shipment is determined, this circular shows the method for arriving at the rate applicable on such a shipment when moving under United States Government bill of lading.”

Circular No. 51-B was not filed with the Interstate Commerce Commission, and the disbursing and accounting officers of the Government have not at any time recognized the said Circular No. 51-B as binding upon the United States, nor is the United States in any way party to the said circular.

X. For the services performed as described in Finding VIII the plaintiff as the last carrier rendered its bill M-471 (covering Government bill of lading W. Q.-63) to the disbursing quartermaster of the United States Army for $4,632.09. The bill was for trucks, wagons, and ambulance stated at $1,936.95 (as to which there is no dispute) and eight carloads of “company property” stated at $2,695.14. The trucks, wagons, and ambulance were properly classified under the tariff used, the “Western classification No. 54, I. C. C. No. 12,” the “company property” which was not specifically classified therein, nor as N. O. I. B. N., was arbitrarily charged as class 1. The disbursing quartermaster gave the bill an administrative examination and then referred it to the Auditor for the War Department for settlement. The auditor settled the bill in accordance with the *231opinion of the comptroller theretofore rendered that the Government was entitled to have its military impedimenta transported on the basis of one baggage car free for every 25 men in a troop movement, and deducted $4,259.87 and paid the balance, $372.22, part of the charge for the trucks, wagons, and ambulance to plaintiff. The auditor now holds that if the plaintiff is entitled to recover it should be on the basis of the provision in “Western classification No. 54, I. C. C. No. 12,” for “ Grader’s, bridge builder’s, and contractor’s outfits ” and the amount for the transportation of “company property” should be $1,876.22, and the total amount ($1,936.95 plus $1,876.22 less $372.22) should be $3,440.95.

XI. If the plaintiff is entitled to recover on the basis of the classification of “ Grader’s, bridge builder’s, and contractor’s outfits” in “Western classification No. 54, I. C. C. No. 12” the amount would be $1,876.22 for transportation of “ company property ” plus $1,936.95 for transportation of trucks, wagons, and ambulance, leaving after land-grant deductions a total $3,813.17, less $372.22 heretofore paid to plaintiff, leaving a balance of $3,440.95.

If the plaintiff is entitled to recover on the basis of the classification in R. H. Countiss’ Rate Circular No. 51-B, the amount would be $2,592 for transportation of “ company property ” plus $1,936.95 for transportation of trucks, wagons, and ambulance, a total of $4,528.95 without land-grant deductions less $372.22 heretofore paid to plaintiff, leaving a balance of $4,156.73.

MEMORANDUM

BY THE COURT.

Under the facts the plaintiff is not entitled to have the shipments classified as first class. The court is called upon to make the proper classification under the tariffs, and adopts the view of the auditor on that question as being the only available classification.

Judgment for plaintiff in the sum of $3,440.95.