#### GULF AND SHIP ISLAND RAILROAD COMPANY v. THE UNITED STATES.

[No. 34743.

Decided January 2, 1923.]

*On the Proofs.*

*Railroad rates; passenger transportation; land-grant*deductions.— Where an equalization agreement provides for land-grant deductions between points of origin and destination based upon the route having the longest land-grant mileage, and there is an agreement between the carriers furnishing such transportation for a division of the compensation between them applicable only to the through rate to a point short of the destination, the land-grant deductions will be made from the proportion of the bills to the point where such through rate stops. See *Missouri Pacific R. R. Oo. case,*56 C. Cls. 341; *Atchison, Topeka-*cG *Santa Fe Ry.,*17 Comp Dec. 486.

*42*The Ref otter's*statement of the case:

*Mr. F. Garter Pofe*for the plaintiff. *Mr. Charles D. Drayton*was 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. Plaintiff is a corporation duly incorporated under the laws of the State of Mississippi. At the times of the different transactions hereinafter set forth in these findings of fact it operated and it still operates a system of railways in the State of Mississippi, doing business as a carrier of passengers and freight for hire and reward under tariffs duly filed with the Interstate Commerce Commission by it and by its connecting lines, with its concurrence, and published as provided by law.

II. When the troops and Army impedimenta hereinafter described were transported there were in force on all the lines 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 *43effective 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. 714, 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.

IY. 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 that 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.

Y. 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 agreements 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, Trans-Continental 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:

*44“in.

“ *Traffic covered by 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.

“ rv.

“ *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 exceptions 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).

*"(b)*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 *45the net individual fare. WEen 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, that 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 Paragraph 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 Interterritorial Military Arrangements to be forwarded to different officers throughout the country concerned with the movement of troops, with the statement that “ the new ar- ■ rangements are along the same lines as the old ones; some disputed points have been cleared up and are therefore published in the new arrangement.”

*46On 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. At various times during the year 1917 plaintiff and' other carriers transported a number of movements of United States troops to terminal points on plaintiff lines. The troops were transported on regular transportation requests at rates substantially 5 per cent less than the regular tariff rates, and the Army impedimenta was moved as freight on bills of lading issued by the Government.

IX. Some years ago what were described as “ freight and passenger land-grant equalization agreements ” were entered into by the railroad companies and the Government, which are still in force, and include the plaintiff company, Section IV, paragraph 1 of which reads:

“ The carriers shown herein agree, subject to the exception specifically stated below and subject also to the exceptions filed by each individual line forming part of a through route, to accept for the transportation of property moved by the Quartermaster Corps, United States Army, and for which the United States Government is lawfully entitled to reduced rates over land-grant roads, the lowest net rates lawfully available, as derived through deductions account of land-grant distance from a lawful rate filed with the Interstate Commerce Commission applying from point of origin to destination at time of movement.”

*47Freight rates were computed on the shortest available lines between the points of origin and destination and land-grant deductions are computed on the lines between the points of origin and destination containing the greatest land-grant mileage. The Louisville & Nashville Railroad Co. and the plaintiff company agreed that the proportion of the through rate to Hattiesburg accruing to them is 87 per cent to the Louisville & Nashville Railroad Co. and 13 per cent to the plaintiff.

The tariff in force on said lines during the transportation, in question provided that the freight charges for military impedimenta transported with accompanying troop movements should be computed at second-class rates on the basis. of 24,000 pounds per car without regard to the actual weight of such impedimenta. The second-class rate in force at that time between Camp Taylor and Louisville was 10 cents per-hundredweight, between Louisville, Ky., and Hattiesburg,. Miss., was $1.01 per hundredweight, and plaintiff’s duly filed tariff between Hattiesburg and Camp Shelby, Miss., was 24 cents per hundredweight, and between Camp Shelby and Gulfport was 64 cents per hundredweight. The freight rate on live stock at that time was $8 per car from Camp Taylor to Louisville, $125 per car from Louisville to Hattiesburg, and $15 per car from Hattiesburg to Camp Shelby.

X. On August 28, 1917, five carloads of military impedimenta, mules and horses, were shipped from Camp Shelby to Jackson, Miss., on Government bills of lading, via the Gulf & Ship Island Railroad. The amount of the bill CS-66, $768.07, is not contested.

In October, 1917, 23 cars containing 552,000 pounds of military impedimenta were shipped on Government bills of' lading from Camp Taylor, Ky., to Camp Shelby, Miss., and were moved by the Southern Railway to Louisville and by the Illinois Central from Louisville to Jackson, Miss., and by the Gulf & Ship Island Railroad from Jackson to Camp-Shelby by way of Hattiesburg. In September, 1917, 12 cars containing 288,000 pounds of military impedimenta were shipped from Louisville to Camp Shelby on Government bills of lading and were moved by the Illinois Central Rail-*48road Co. from Louisville to Jackson and by the Gulf & Ship Island Railroad from Jackson to Camp Shelby via Hattiesburg. In October, 1917, 7 carloads of horses were shipped on Government bills of lading from Louisville to Camp Shelby and were moved by way of the same lines and route as above.

The route from Louisville to Camp Shelby having the greatest land-grant mileage is by the Louisville & Nashville Railroad, from Louisville to Gulfport, Miss., 742 miles, of which 302 miles, from Decatur to Flomaton, Ala., is land aided, and by the Gulf & Ship Island from- Gulfport to Camp Shelby, 60 miles, of which 40 miles is land aided, and both subject to 50 per cent deductions on account of land grant.

The total distance from Gulfport to Hattiesburg is 71 miles. The land-grant deduction applicable to earnings of the Louisville & Nashville Railroad from Louisville to Gulfport is .2035 per cent, and the land-grant deduction from the Gulf & Ship Island Railroad from Gulfport to Camp Shelby is .33£ .per cent. Under the long-continued and well-established practice of the accounting officers, land-grant deductions are made from the entire bills for the transportation of freight, and not from any particular portions of them.

XI. For the services rendered by the said carriers, the plaintiff, as the last carrier, rendered its bills numbered CS-66, for $768.07, CS-142, for $3,600.00, and CS-229, for $7,413.98, to the disbursing officer of the United States Army, who transmitted them to the Auditor for the War Department, who, with the exception of a payment of $21.13 on bill No. CS-229, disallowed all of the transportation charges on the ground that the Government was entitled to the free transportation of one carload of impedimenta for every 25 men in the accompanying troop movements.

XII. If the land-grant deductions should be made upon the basis of 87 per cent of the entire bill to one road and 13 per cent to the other road, less the proportion of land grant applicable to the respective roads, then the amount of plaintiff’s recovery should be $10,304.72.

*49If the land-grant deductions should be made upon the basis of 87 per cent and 13 per cent of the through rate to Hattiesburg only, less the proportion of land grant applicable to the respective roads (and including in the basis of computation the local), then the amount of plaintiff’s recovery should be $10,065.25.

MEMORANDUM

BV THE COURT.

The point of origin of the shipments was Louisville, except an item in the rate from Camp Taylor to Louisville, which is not material as regards the question of deductions in the case. The shipments moved by the shortest line between the points of origin and destination, and the rate to the point of destination is made up by a through rate to Hattiesburg, with the addition of the established local tariff rate from Hattiesburg to Camp Shelby, the point of destination.

The equalization agreement provides for deductions from the lawful established rate based upon the route having the longest mileage of land grant. It would seem that the land-grant roads would participate in the proportions of 87 per cent and 13 per cent, but the plaintiff’s insistence is that the agreed division in this case between the land-grant roads is applicable only to the through rate to Hattiesburg; and there is no evidence to the contrary. The applicable percentages of land grant are deducted from these respective proportions of the bill. The view urged that the local rate (called “an arbitrary”) between Hattiesburg and Camp Shelby (the point of destination) is not subject to land-grant deductions is not adopted, but the applicable tariff is based upon 24,000 pounds per car irrespective of actual weight. See *Missouri Pac. R. R. Co. case,*56 C. Cls. 341. See also *A., T.*& *S. F. Ry. case,*17 Comp. Dec. 486, decided in 1911.

Judgment for plaintiff in the sum of $10,065.25.