#### JAMES A. BAKER, RECEIVER OF THE INTERNATIONAL & GREAT NORTHERN RAILWAY COMPANY v. THE UNITED STATES.

[No. 34462.

Decided June 13, 1921.]

*On the Proofs.*

*Land grant deductions;' construction of act of Oct. 6, 1917.*— Where services were rendered by land grant railroads to the United States prior to the passage of the act of October 6, 1917, 40 Stat., 361, relieving such roads from land grant deductions during the period of the late war, but release from such deductions was not claimed by the railroads in their settlements with the Government, the amount of such deductions may be recovered, after settlement with the accounting officers, by suit in this court.

*The Reporter's*statement of the case:

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

*Mr. Charles F.*Jones, with whom was *Mr. Assistant Attorney General Robert E.*Lovett, for the defendant.

*337The following are the facts of the case as found by the court:

I. Plaintiff is the receiver, duly appointed, qualified and acting, of the International & Great Northern Railway Company, a corporation organized under the laws of the State of Texas, and for many years and at the times hereinafter stated did operate and still operates the system of railways in said State formerly operated by the said corporation. No part of the lines of said railway were constructed by the aid of the grant of lands by the United States, but plaintiff equalizes his rates with, and, as connecting carrier, sells transportation over lines so aided.

Plaintiff has always been loyal to the United States and has never aided or abetted its enemies.

II. At the request of proper officers of the Navy Department, the plaintiff during the months of June, July, August, and September of 1917 furnished that department transportation for enlisted men for the United States Navy from Houston, Texas, to points on other railroad lines routed over the land grant portion of the Missouri Pacific Railroad from Texarkana, Arkansas, to St. Louis, Missouri, involving in the computation of the amount due therefor *“*free ” land grants of the character referred to in the act of October 6, 1917, and rendered therefor, for settlement, to the Auditor of the Navy Department, its bills numbered 6654, 7644, 8679, and 9798. Said bills were rendered respectively on August 6, 31, October 13, and November 3,1917.

III. Said bills were rendered by the plaintiff on the prescribed form of Government voucher for transportation of passengers, land grant involved, and stated in separate columns under appropriate headings the number of the transportation request, the number of passengers, the rate per passenger, the “ gross amount,” th« “ amount to be deducted on account of land grant,” and the “ amount claimed.” In stating these bills the “ amount to be deducted on account of land grant” was computed at 100 per cent for the amount of free land grant involved. The bills had appended the usual form of certificates as to their correctness, which were signed by the auditor for the receiver. By auditor’s settlement numbered 6659 of May 16,1918, these bills were allowed *338in the full amount claimed, were paid by the usual method, and payment accepted without protest of any kind.

IY. During the months of December, 1918, and January and March, 1919, the plaintiff rendered supplemental bills numbered *11365, 1150, 1162,*and 2187 for the same transportation, but stating therein larger amounts due therefor and claiming the difference. These supplemental bills were rendered upon the same voucher form as the original bills, bore the same transportation request numbers, stated the same individual rate and the same *“*gross amount,” repeated the same “ amount to be deducted on account of land grant ” and the same “ amount claimed,” followed by the statement of a lesser amount as “amount to be deducted on account of land grant ” and a larger amount as *“*amount claimed,” and stating as the final amount claimed the difference between the amount claimed in the original bill and the supplemental bill. The essential difference was in the statement of the “ amount to be deducted on account of land grant,” which, having been stated in the original bills at 100 per cent for the amount' of free land-grant road involved, was stated in the supplemental bills at 50 per cent. The amount claimed in the supplemental bills in excess of that claimed in the original bills and allowed and paid was $783.01. These supplemental bills were disallowed by the auditor on the ground that the plaintiff having accepted payment under the original bills, the auditor had no jurisdiction to consider the supplemental bills, and upon appeal the decision of the auditor was affirmed by the Comptroller of the Treasury.

Y. The difference between the amount plaintiff was entitled to at the several times of furnishing the transportation and what was authorized to be paid by the terms of the act of October 6, 1917, 40 Stat. 861, passed after the service was performed, is $783.01.

Campbell, *Chief Justice,*

delivered the opinion of the court:

The railroad company — represented here by its receiver— furnished certain passenger transportation at the request of proper officers of the Navy Department. The company’s line was not land aided and rates for transportation over the *339same were .unaffected by the land-grant statutes, except that the company equalizes its rates with, and as a connecting carrier affords transportation over, lines so aided. It thereby becomes entitled to only such rates as land-aided roads would receive.

The transportation was furnished in June, July, August, and September of 1917, and the company rendered bills therefor to the Auditor for the Navy Department on August 6, August 31, October 13, and November 3, 1917, respectively. Each of these bills was for the correct amount due for the transportation furnished at the date the same was furnished; that is to say, land-grant deductions were made upon the bills in strict accordance with the law and the equalizing agreement as the same stood when the transportation was furnished. After the service was performed the act of October 6, 1917, 40 Stat., .361 was passed, which provided for additional compensation to certain land-grant railroads during the then existing war. The construction given that act by accounting officers, and we think it the proper construction, was that it applied to transportation furnished during the emergency as well before as after the date of its enactment. It was hence held that where a railroad company had furnished transportation during the emergency and been paid therefor at proper rates before the passage of the act of October 6, the company could make and be allowed a supplemental claim based on the provisions of that act. It was further held, however, that where a claim was presented after the act was passed and went to voucher and payment, a supplemental claim under the act of October 6,1917, could not be entertained. The ruling was based upon the ground that the accounting officers had lost jurisdiction of the claim after its allowance and the acceptance of payment.

It will be noted that two of the bills were presented to the auditors in August preceding the date of the act of October 6. They were for the correct amounts then due, and they were also for the correct amounts due according to the law when the transportation was furnished. If they had been paid prior to October 6 a supplemental claim under the act *340of that date would have been allowed by the accounting officers.

The other two bills were presented a very short time after the passage of the act, though the service involved was performed prior to the date of the act. These bills as presented were for the correct amounts due when the indebtedness accrued, and they took no notice of the late act, which authorized a larger compensation. The bills were not audited and paid until May, 1918. The company accepted payment of the bills as rendered and allowed and, until after such payments, made ho claim under the act 6f October 6. Thereafter it presented supplemental claims, which the accounting officers would not consider because, as stated, they had lost jurisdiction.

We treat the case as seeking to recover the additional compensation provided for in the act mentioned. The bills rendered, allowed, and collected were each for the correct amount due when the transportation was furnished and the indebtedness accrued. Thereafter the act in question allowed further compensation for service performed during the war. To recover that amount for a service performed prior to the enactment of the statute the action is properly maintainable in this court. Nor does this ruling in any wise contravene the principles decided in the *B. &. O. R. R. Co.*case, 52 C. Cls., 468; *Denver & Rio Grande R. R. Co.*case, 54 C. Cls., 125; *Oregon-Washington Railroad & Navigation Co.*case, 54 C. Cls., 131; *Western Pacific R. R. Co. case,*54 C. Cls., 215. This case is controlled by its own peculiar facts.' In none of the cases mentioned was there any effort to sue upon an additional right granted by statute after the accrual of the plaintiff’s right of action for services performed. Other differences between this and the cases cited readily appear from the facts. We do not qualify but adhere to the line of cases cited above.

Judgment will be rendered for plaintiff in the sum of $783.01.

Graham, *Judge;*Hat, *Judge,*and Booth, *Judge,*concur.