#### ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. THE UNITED STATES.

[No. 34565.

Decided March 12, 1923.]

*On the Proofs.*

*Railroad rates; settlement; Railroad Administration.*— Where a railroad company presents its bills for transportation of Government property in troop movements to the disbursing quartermaster, who pays the same, and they are afterwards disallowed by the Auditor for the War Department on the ground that the Government was entitled to one baggage car free for every 25 men in the troop movement, and are deducted by him from Bailroad Administration bills for transportation of the Government property over said railroad, the railroad company is not entitled to recover the amount so deducted unless it has reimbursed the Bailroad Administration for said amounts.

*The Reporter’s*statement of the case:

*Mr. Alexander Britton*for the plaintiff. *Britton*$ *Gray*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 is a corporation, organized and existing under the laws of the State of Kansas, and owns and oper*144ates a system of railroad and railways extending from Chicago, Ill., on the east, to San Francisco and San Diego, Calif., on the west, over the main lines and branches of which system the plaintiff is now and was at the time hereinafter mentioned a common carrier for hire of freight and passengers, under tariffs established and filed with the Interstate Commerce Commission, by it and its connecting lines, with its concurrence, and published as provided by law.

II. At the time of the transportation of the troops and military impedimenta hereinafter mentioned there were in force on the lines of the plaintiff and its connecting carriers certain special baggage-car tariffs covering the territory through which the said troops and military impedimenta were moved, which stated, in substance and effect, the terms and conditions upon which associated travelers traveling on one ticket might become entitled to a baggage car free for the transportation of certain of their effects on the basis generally of one car to each 25 passengers.

III. At different times during the years 1914, 1915, and 1916 the plaintiff, with other railroad carriers of the United States, entered into certain agreements with the United States Government on the subject of fares and allowances in connection with the transportation of military traffic, including the following:

“ Western Military Arrangement (Army), dated November 30, 1914, signed on behalf of the carriers by their duly authorized agents and on behalf of the United States by the Quartermaster General of the Army; which was in effect from November 1, 1914, to July 1, .1916;

“ Revised Western Military Arrangement, dated April 1, 1916, signed on behalf of the carriers by their duly authorized agents and on behalf of the United States by the acting Quartermaster General of the Army, the acting chief of Bureau of Navigation, and the Quartermaster, Marine Corps; which was in effect from July 1, 1916, to December 31,1916;

“ Interterritorial Military Arrangement 1, dated December 28, 1916, signed on behalf of the carriers by their duly authorized agents and on behalf of the United States by the Quartermaster General of the Army, the Chief of Bureau of Navigation, and the Quartermaster, Marine Corps; which was in effect throughout the year 1917.”

*145The said western military arrangement (Army), effective November 1, 1914, and revised western military arrangement, effective July 1, 1916, contained, among other provisions, the following:

“ One hundred and fifty (150) pounds of personal effects of officers and men properly checkable as baggage will be transported without charge for one person, but this does not include company, battalion, regimental or Government property. Personal baggage in excess of the weight stated, when provision for transportation of same is specifically made in U. S. Army, U. S. Navy and U. S. Marine Corps, transportation request, will be charged for at the excess baggage rates less lawful land-grant deductions.

“ When company, battalion, regimental or Government property is moved on passenger trains, it shall be subject to adjustment for each movement.”

The said interterritorial military arrangement, effective January 1, 1917, contained, among other provisions, the following :

“ m.

*“*TRAPPIO COVERED BT THIS ARRANGEMENT.

“ The net fares allowances and routes in connection therewith, authorized hereunder, are applicable exclusively for the transportation of officers and enlisted men and others connected with the United States Army, United States Navy, and United States Marine Corps; for whom the United States is lawfully entitled thereto, and when traveling on transportation requests of the issue of the United States Army, United States Navy and United States Marine Corps and at United States Government expense only.

“IV.

"NET PARES 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 exception, Section V), less lawful land-grant deduction properly established, less five per cent (5%), the five per cent allowances not to exceed the maximum allowances or exceptions as specified in Section *146VI. 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.

* **** * # * <=

“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 specifically 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 the net individual fare. When 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.”

IV. At different times during the years 1915, 1916, and 1917, the plaintiff transported upon Government bills of lading as freight, shipments of camp equipment, and military impedimenta, the property of the United States, including horses, wagons, forage, bedding, kitchen equipment, and live stock, the said shipments usually moving in passenger trains with accompanying movements of troops.

V. For said transportation service over the lines west of Albuquerque, N. Mex., the plaintiff, as the last carrier, rendered to the disbursing quartermaster of the United States Army its bills numbered 710614^-A, 710614-C, 712155, 712156, 712602, 801605, 801620, 801623, 802623, 802636, 504020, 708632, 709123, 712603, 801624, 803165, 805611, 005633, which *147were settled by the said disbursing quartermaster and payments made in due course by him to the plaintiff. The Auditor for the War Department thereafter in auditing the accounts of the disbursing quartermaster disallowed payments that had been made by said quartermaster to the plaintiff in the sum of $15,204.78 upon the ground that to that extent such payments had been erroneously made, as the Government was entitled under certain tariffs in force on said railroad to have its military impedimenta transported by one baggage car free for every 25 men in the troop movements, which was not done, and deducted the said sum of $15,204.78 from subsequent bills rendered by plaintiff to said disbursing quartermaster for the' transportation of other Government property over said railroad.

VI. For said transportation service over the lines east of Albuquerque, N. Mex., the plaintiff, as the last carrier, rendered to said disbursing quartermaster its bills numbered 18847, 18885-A, 18885-B, 18885-C, 18857, 19005, 20225, 20427, 20603, 20649, 21219, 22117, 23613, which were settled by said disbursing quartermaster and payments made in due course to plaintiff. The Auditor for the War Department in auditing the accounts of said disbursing quartermaster disallowed as erroneous payments made by said disbursing quartermaster to plaintiff as aforesaid in the sum of $10,-163.15, upon the ground that the Government was entitled to free transportation of its military impedimenta under certain tariffs in force on said railroad to that amount, and deducted from subsequent bills rendered by plaintiff to said disbursing quartermaster for transportation of other Government property over its lines $4,871.75 of the amount disallowed as aforesaid and the balance thereof, $5,291.40, was deducted from bills rendered by the United States Eailroad Administration to said disbursing quartermaster for the transportation of other Government property over plaintiff’s railroad, the said Eailroad Administration, pending the settlement of said balance, having taken over the possession, control, management, and operation of plaintiff’s railroad from December 28,1917, to March 1, 1920. The said balance of $5,291.40 so deducted was charged to the account of the plaintiff company. There is no proof that this sum has been repaid by *148plaintiff to either the Railroad Administration or to the 'Government.

VII. Bill 802657 was originally rendered by plaintiff to the disbursing quartermaster for $1,620 and was canceled by that officer and returned to plaintiff, who does not appear to have pressed its claim for this item further until this suit in the Court of Claims, where it is stated as $1,475.44. There were no bills of lading as in case of freight transportation. The evidence submitted does not appear sufficient to sustain the item.

MEMORANDUM

BY THE COURT.

(1) The facts fail to show that the deductions made from the bills of the Railroad Administration have been paid by the railroad company to the administration. The mere charging on the books is not sufficient. In one other case where similar facts appeared the evidence showed that though the amount deducted from the Railroad Administration account had been charged to the railroad involved in that case the same had not been accounted for or paid by the railroad corporation to the Railroad Administration.

(2) The item mentioned in the seventh finding is not sufficiently proved, and, on the contrary, the auditor’s statement is to the effect that the items in question were checkable baggage not exceeding 150 pounds to each person. This item is therefore not allowed.

Judgment for plaintiff under Findings V and VI in the sum of $20,076.53.