#### CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. THE UNITED STATES.

[No. 34705.

Decided January 2, 1923.]

*On the Proofs.*

*Railroad mies; combination of local and party rates.*— Where the Government contracts with plaintiff for special expedited passenger service at an agreed rate and plaintiff furnishes the same, the accounting officers have no authority to fix a lower rate by combining local and party rates and deducting the different between said rates from another bill of plaintiff. See *Missouri Pacific R. R. Go. case,*66 C. Cis. 341; *Atchison, Topelca*cG *Santa Fe Ry. Go. case,*256 U. S. 205.

*The Reporter's*statement of the case;

*Mr. Sidney F. Taliaferro*for the plaintiff. *Messrs. Thomas P. Littlepage*and *Daniel Taylor*were on the briefs.

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

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

I. The plaintiff, the Chicago, Eock Island & Pacific Kail-way Co., is a consolidated corporation existing under and *39by virtue of tlie laws of tbe States of Illinois a.ud Iowa, respectively. It is and for some time prior to September, 1912, •continuously to tbe present time was a common carrier of freight and passengers for hire, and during all of said period of time it operated a line of railway extending into .and through various States of the United States, including the States of Kansas, Oklahoma, and New Mexico; and ■upon the dates hereinafter mentioned its said line of railway Intersected and connected by means of an interchange track with the line of railway of the Union Pacific Bailway Co., ■at or near the town of Manhattan, Kans., and at Santa Bosa, N. Mex., plaintiff’s line of railway connecting with the line ■of railway of the El Paso & Southwestern Bailroad Co. The respective lines of railway above mentioned formed a continuous line of railway for through transportation from Fort Biley, Kans., situated upon the line of railway of said Union Pacific Bailroad Co., to Fort Bliss, Tex., situated upon the line of railway of the El Paso *&*Southwestern Bailroad Co., via said Manhattan, Kans.

II. Following negotiations between the plaintiff company ;and the United States a contract in writing was entered into between the parties by their duly authorized representatives under date of September 11, 1912, for the transportation of '902 officers and men, troops of the United States Army, together with animals and impedimenta, from Fort Biley, Kans., to Fort Bliss, Tex. The said contract is set forth in the petition except that the provision relating to net rates ■ should read as follows: “ The above rates are net cash and not subject to further deduction unless it be subsequently-found that they' are in excess of regular tariff rates less land-grant or for lawful deductions to which the Government is entitled, when the lower rate will govern in settlement, ex•cept when special passenger train service is called for and furnished.” The said contract provided for the railroad equipment to be furnished and provided the routes to be traveled between the points of origin and destination.

III. Pursuant to the terms of the contract hereinbefore referred to in Finding II the plaintiff, together with the connecting railroad companies named in said contract (the Union Pacific Bailroad Co., the El Paso & Southwestern *40Railroad Co., and the Chicago, Rock Island & Gulf Railway Co., the last named being a subsidiary of the plaintiff company) furnished the said equipment and transported the officers, enlisted men, animals, and impedimenta, and fully performed said contract as provided and required by the terms thereof. There was special expedited service, escorted by passenger representatives and trainmasters to see that everything was carried out to make the fastest possible time.

Thereafter the plaintiff issued a waiver to the Union Pacific Railroad Co., for the purpose of having the Union Pacific Railroad Co. act as its agent to collect the amount due under the contract.

The defendant paid to the Union Pacific Railroad Co. the sum of $19,528.30 in full settlement of claim for services performed under said contract. Thereafter the United States Government, in the settlement of its accounts with the Union Pacific Railroad Co., on aocount of some entirely unrelated matters, deducted from said settlement the sum of $1,271.82, which it alleged was an overpayment of that amount in its former settlement of $19,528.30. Thereafter the Union Pacific Railroad Co. charged against and in a settlement deducted from the plaintiff the sum of $667.48 as its individual share or proportion of the $1,271.82 deducted by the Government.

IY. At the time -when the contract referred to in Finding II hereof was entered into and at the time when the transportation services were performed there was no published through tariff rate between Fort Riley, Kans., and Fort Bliss, Tex. The commercial through rate, made up of a combination of local fares, amounted to the sum of $27.27 per capita. Application of the maximum land-grant deduction of $5.62 per capita produced a net rate of $21.65 per capita applicable for transportation of troops of the United States Army.

V. The accounting officers of the Government, in making the total deduction of $1,271.82, calculated on a basis of $20.24 per capita as payable for the rail service performed, and .as a basis therefor combined a local rate from Fort Riley to Kansas City and a party rate from there to destination. •

*41VI. The sum of $1,271.82 deducted by the United States as an alleged overpayment, the proportionate amount of the several railroads under the agreement existing between them and on the basis of the rates charged was as follows:

The Chicago, Bock Island & Pacific By. Co__ $622.38

The Chicago, Bock Island & Gulf By. Co_ 135. 30

The El Paso & Southwestern B. B. Co_ 514.14

Total_1,271.82

VII. The plaintiff company has at all times borne true allegiance to the Government of the United States, and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government; and it has not at any time made any assignment of the claim herein.

MEMORANDUM

BY THE COURT.

The facts show a rate under a contract for a special train service that was furnished. See *Missouri Pacific R. R. Co. case,*56 C. Cls. 341; Atchison, *Topeka & Santa Fe Ry. Co. case,*256 U. S. 205.

Judgment for plaintiff in the sum of $1,271.82.