#### CAIRO, TRUMAN & SOUTHERN RAILROAD COMPANY v. THE UNITED STATES AND JAMES C. DAVIS, DIRECTOR GENERAL OF RAILROADS.1

[No. B-235.

Decided April 30, 1923.]

*On Defendant's Demurrer.*

*Federal control of railroads; just compensation; report of referees; jurisdiction.*— Where an act of Congress provides that unsettled claims of railroad companies for just compensation shall be submitted to a board of three referees, who shall consider all the facts presented and report in convenient form its findings as to just compensation to the President, who is thereupon authorized to enter into an agreement with such railroad companies for just compensation, not in excess of the amount reported by said board, and failing such agreement either party may file a petition in the Court of Claims for just compensation, the report of said board to be *prima facie*evidence of the amount of just compensation and the facts stated therein, the court upon the failure of said board to report such just compensation has no jurisdiction to consider the claims.

*Same; agreement to settle.*— Where a railroad company executes a unilateral contract in consideration of obtaining the two days’ free time in its use of the cars of other connecting lines, or reclaim allowance when it has paid for such two days’ free time, and agrees to accept the same in full adjustment, settlement, satisfaction, and discharge of any and all claims and rights, at law or in equity, which it now has or hereafter can have against the United States, it is not entitled to recover just compensation under the railroad control act.

*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. Ashbaugh*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 *337of 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 Eailroads, who operated said railroad from said December 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 Eailroads, a correct copy of same being attached to the petition and made part thereof, wherein it appears 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 relating to the Federal control of railroads or any act of the President or of the Director General of Eailroads; provided, however, that nothing herein is intended to affect any claim said company may have against the United States for carrying the mails or for other services rendered not pertaining to or based upon the Federal control act; that by virtue of the proclamation and order of the President effective on January 1, 1918, and the several provisions of law applicable thereto the defendant became liable to pay the plaintiff just compensation therefor during said alleged period of Federal control as is provided for by the act of Congress of March 21, 1918, known as the Federal control act; that a demand for such payment has been made on the Director General of Eailroads, 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 *338and decision of said board plaintiff has appealed to this court.

“ Exhibit A.

“ Whereas the railroad of the Cairo, Truman, and Southern Railroad Company, a corporation of the State of Arkansas, with main line extending from Truman, Arkansas, to Weona, Arkansas, has been relinquished from Federal control; and

“ Whereas the said railroad company has elected not to enter into the standard cooperative short-line contract with the Director General of Railroads, but is desirous of obtaining the special advantages of two days’ free time or reclaim allowance on cars, and such other cooperation as may be accorded to it by the director general in pursuance of his general policy of cooperation toward short-line roads as announced by him;

“ Now, therefore, the said railroad company, in consideration of the premises, and of obtaining the advantages of the two days’ free time or reclaim allowance and such other cooperation as is accorded to it by the Director General of Railroads, hereby agrees to accept the same in full adjustment, settlement, satisfaction, and discharge of any and all claims and rights, at law or in equity, which it now has, or hereafter can have, against the United States, the President, the Director General of Railroads, or any agent or agency thereof, by virtue of anything done or omitted pursuant to the acts of Congress relating to the Federal control of railroads, or any act of the President or of the Director General of Railroads: Provided, however, That nothing herein is intended to affect any claim said company may have against the United States for carrying the mails or for other services rendered not pertaining to or based upon the Federal control act.”

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

1

 Appealed.

1

 An amended petition was filed in tlais 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

BY 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 act, 40 Stat. 451. It provides for action by a board of *339referees 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.