#### EL PASO & SOUTHWESTERN COMPANY v. THE UNITED STATES

[No. 34481.

Decided January 7, 1924]

*On the Proofs*

*Land-grant deductions; bills made out on forms ‘prescribed, by comptroller; payment in full; protest.*— See *Galveston, Harrisburg & San Antonio Ry. Oo., ante,*p. 89.

*The Reporter’s*statement of the case:

*Mr. William R. Harr*for the plaintiff. *Harr & Bates*were on the briefs.

*Mr. Perry W. Howard,*with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

*94The following are the facts of the case as found by the court:

I. Plaintiff is a corporation of the State of New Jersey and is engaged in business in the United States as a common carrier by railroad of passengers and property through the lease or control of the following railroads: The El Paso & Southwestern Railroad of Texas, El Paso & Southwestern Railroad, Burro Mountain Railroad, The El Paso & Northeastern Railroad, El Paso' & Northeastern Railway, El Paso & Rock Island Railway, Dawson Railway, Alamogordo & Sacramento Railway, Chicago, Rock Island & El Paso Railway, and the Atchison, Topeka & Santa Fe Railway from Whitney, N. Mex., to Burro Mountain Junction.

The aforesaid railroads are operated by plaintiff as the El Paso & 'Southwestern system, under the name of which system plaintiff transacts its said business as a common carrier, including the making of contracts for transportation, publishing tariffs, and rendering accounts to the Government of the United States and others for such transportation.

II. Under the acts of Congress granting lands in aid of railroads and acts of Congress regulating the expenditure of appropriations by the United States for Army transportation over such land-grant railroads, said land-grant railroads were required to transport troops of the United States for certain less amounts than those charged private parties for similar transportation.

Some years ago, and prior to the times when the services hereinafter mentioned were performed, the railroad companies of the United States generally, including plaintiff, severally agreed with the Quartermaster General of the United States Army (subject to certain exceptions not necessary here to be stated) to accept, for the transportation of troops of the United States, the lowest net fare, and the lowest net excess-baggage rate, lawfully available as derived through deductions on account of land-grant distance via a usually traveled route for military traffic from a lawful fare or excess-baggage rate filed with the Interstate Commerce Commission as applying from point of origin to destination at time of movement. These agreements, commonly known *95as “land-grant equalization agreements,” were in force at the times of tlxe transactions hereinafter referred to.

Plaintiff and its subsidiaries were such “ equalizing roads ” and not “ land-grant ” roads.

III. Between April 1, 1914, and June 18, 1916, plaintiff, upon transportation requests issued by the War Department of the United States, transported certain persons belonging to the following classes, namely: Discharged soldiers; discharged military prisoners en route to their homes after expiration of sentence; retired soldiers; and civilian employees of the United States.

IY. For all of such transportation the plaintiff was paid by disbursing officers at land-grant rates, on its bills so rendered, and the total amount herein claimed as the difference between the amount received for such transportation at land-grant rates and the amount the plaintiff would have received if paid at full tariff rates is $20,250.88.

Of said sum there is claimed for the period from April 1, 1914, to April 30, 1915, inclusive, $10,937.83, of which, $6.71 is erroneously charged; $81.36 is unsupported by any evidence ; $1,920.25 is deduction on account of the transportation of persons conceded to be within denomination “ troops of the United States”; $8,890.55 is deduction on account of the travel of discharged soldiers; and $38.96 on account of the travel of civilian employees; $8,929.51 being the total of the last two items, is the final amount claimed for the period stated.

For the period from May 1, 1915, to June 18, 1916, the ' total amount claimed on account of the difference between the amount claimed and paid at land-grant rates and the amount of the transportation during said period at full commercial rates is $9,313.05. Of this amount $14.28 is erroneously charged; $6.17 is unsupported by evidence; $887.31 is deduction incident to the travel of persons conceded to be within denomination “ troops of the United' States ”; $7,565.09 is on account of the travel of discharged soldiers; $555.76 is on account of the travel of civilian employees; $274.62 on account of the travel of retired soldiers; $9.82 on account of the travel of discharged prisoner, making $8,405.29, the aggregate of the last four items, as the amount finally claimed for this period.

*96V. The amount claimed as to each item of transportation referred to was stated by the plaintiff in bills submitted to a disbursing officer of the Army for payment on basis of land-grant deduction in each instance, which bills were rendered on the form of voucher prescribed by the Comptroller of the Treasury for transportation subject to land-grant deduction, and which form required the stating of the account in columns under the headings, “ Total mileage,” “ Mileage of land-grant road,” “Number of men,” “Rate per man,” “ Gross amount,” “Amount to be deducted on account of land grant,” and “Amount claimed,” followed by a certification that the claim was correct and just. All the bills were paid in the full amount stated in the final column as the “Amount claimed,” which was the land-grant rate arrived at by deducting the “Amount to be deducted on account of land grant ” from the “ Gross amount.”

VI. For the period between April 1, 1914, and April 30, 1915, inclusive, plaintiff’s bills were rendered as stated in the preceding finding and paid by disbursing officers, to whom rendered, at the amount claimed therein without any protest on the part of the plaintiff either before, at, or after the time of presentment or at the time of pajnnent.

VII. Beginning May 1, 1915, plaintiff began to attach protests to its bills before presentment for payment and for the most part its bills for transportation furnished between May 1, 1915, and June 18, 1916, inclusive, bore protests in form as follows:

“ This - bill covers transportation of -, for which full tariff fares, which are hereby claimed by the carrier and should be paid, amount to - dollars, but as the United States Government accounting officers claim their authority is limited to the payment therefor at the same rate as land-grant fares for troops of the United States this bill is calculated and extended at the latter rates for the amount herein shown, but under protest, and the - Company, for itself and connecting carriers, hereby reserves its right to the full published tariff fares above named and payment at any less rate and of any less amount will be accepted as part payment only for the services performed.”

Of said sum of $8,405.29 finally claimed for this period, $7,256.05 of said amount appeared as deductions in bills which bore protest in form above set out, with the blanks *97appropriately filled,' and $1,149:24 ofi said amount appeared as deductions in bills which bore no protest.

MEMORANDUM BX THE COURT

As to the portion of plaintiff’s claim stated in Finding VI, reference is made to *Baltimore & Ohio R. R. Co.*v. *United*States, 52 C. Cls. 468, and *Oregon-Washington R. R. & Nav. Co.*v. *United*States, 54 C. Cls. 131; 255 U. S. 339.

As to the remainder of the claim, reference is also made to *Southern Pacific Co.*v. *United*States, ante, p. 36, and *Western Pacific R. R. Co.*v. *United States,*ante, p. 67, both decided this day.

The form of the protest used in this case is not regarded as affecting the principle involved, which is discussed in detail in the cases referred to.

The petition is dismissed.