#### CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY v. THE UNITED STATES.

[No. A-76.

Decided June 2, 1924]

*On the Proofs*

*Railroad rates; restatement of bill; payment by disbursing*officer.— Where a railroad company restates a bill without protest and it is paid by the disbursing officer as restated, the company can not recover the amount dropped in its restatement.

*Same; deduction by Auditor for free baggage.*— Where transportation services are rendered by a railroad company *before*Federal control, and the Railroad Administration, as agent for the company, presents bills therefor to the Auditor who deducts a certain amount for impedimenta that he contends should have been carried free, the company is entitled to recover the amount so deducted.

*The Reporter’s*statement of the case:

*Mr. Benjamin Garter*for the plaintiff.

*Mr. Lisle A.*Smith, with whom was *Mr. Assistant Attorney General Robert II.*Lovett, for the defendant.

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

I. The plaintiff is a corporation duly incorporated under the laws of the State of Wisconsin, and during the times of the different transactions hereinafter set out in these findings of fact, operated, and still operates, a system of railroads in said State and other States, as a common carrier of passengers and freight for hire and reward under tariffs duly published and filed with the Interstate Commerce Commission as required by law.

*733II. At tlie time of the transportation hereinafter described there were in force on the lines of the plaintiff and other railroad carriers with which it connected, being the carriers who furnished the transportation hereinafter mentioned, 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 trav-. eling 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 free to each group of 25 passengers.

III. During 1916 and 1917 there were in effect certain agreements between the United States and the railroad carriers, including the plaintiff, on the subject of fares and charges for the transportation of military traffic. One of these agreements was entitled Western Military Arrangement and was in effect from July 1, 1916, to December 31, 1916. Another ivas Interterritorial Military Arrangement, dated December 28, 1916, which was in effect from January 1, 1917, throughout the year 1917.

The Western Military Arrangement contained 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, IT. S. Navy, and U. S. Marine Corps transportation request, will be charged for at the excess baggage rates less lawful land-grant deductions.

“ When a 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 provided:

“ 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 allow-*734anee 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 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.”

IY. The said Interterritorial Military Arrangement was in full force and effect as late as May 20, 1920, and its provisions have been observed by carriers generally. Under the terms of said arrangement the Government has paid for transportation at rates substantially 5 per centum less than it otherwise would have paid.

V. In the years 1917 and 1918, at different dates, shipments of Government property, known as military impedimenta, were made over plaintiff’s lines and those of its connecting earlier in connection with movements of United States troops for whose use said property was transported at the request of authorized officers of the United States. Such shipments of military impedimenta were made on Government bills of lading, on forms prescribed by the Comptroller of the Treasury for the transportation of Government property. The Government property so trails-* ported came within the classification of freight tariffs in force on plaintiff’s lines and those of its connecting carriers at the time said service was performed.

YI. The plaintiff as the last carrier presented its bill 14053 (bills of lading 8820, 8821, and 8822) to the disbursing quartermaster for $4,047.04, who refused payment. Plaintiff thereupon, dropping $2,295.79, restated its bill at $1,751.25, which was paid to it by the disbursing officer. Thereafter the Auditor for the War Department deducted the amounts so paid to plaintiff, $1,751.25, from a bill of the United States Bailroad Administration, which, in the *735meantime, bad taken over plaintiff’s road, upon tlie ground that the Government was entitled to have had its military impedimenta carried free in one baggage car for every 25 men in the troop movement.

VII. The service for which bill G-13907 (bill of lading-237) was rendered was performed by plaintiff February 16, 1917. The bill was presented by the Railroad Administration, as the agent of the plaintiff, to the auditor for $5,200.67, who deducted $3,280.(52 on the ground that the Government was entitled to have its military impedimenta transported free in one baggage car for every 25 men in the troop movement, and paid the Railroad Administration the balance, viz, $1,920.05.

The service for which bill G-14579 (bill of lading 109) was rendered was also performed by the plaintiff and the bill was presented to the auditor by the Railroad Administration as the agent of plaintiff in the sum of $6,462.11, who deducted $5,203.25 upon the ground that the Government was entitled to have its military impedimenta carried free at the rate of one baggage car for every 25 men in the troop movement, and paid the Railroad Administration the balance, viz, $1,258.86.

The amounts of these two collections of $1,920.05 and $1,258.86 were paid or accounted for by the Railroad Administration to plaintiff. These twro deductions of $3,280.62 and $5,203.25, aggregating $8,483.87, were not paid to either plaintiff or the Railroad Administration.

VIII. The plaintiff, as the last carrier, presented its bill G-13806 (bill of lading 173) to the disbursing quartermaster for $2,748.58, who appeal's to have paid the same to the plaintiff as rendered; subsequently the auditor, from a bill of the Railroad Administration for service performed by it, deducted $1,530.87.

The plaintiff, as the last carrier, presented its bill 14861 (bills of lading 197 and 198) to the disbursing quartermaster for $1,643.82, which appears to have been paid as rendered; subsequently the auditor deducted from a bill of the Railroad Administration the entire amount, $1,643.82, upon the ground that the Government ivas entitled to have had its military impedimenta transported free in that amount.

*736The- two amounts so deducted, $1,530.87 and $1,643.82, were charged by the Railroad Administration against the plaintiff and were finally adjusted between them in the settlement of November 1,1920, and have been dropped from this suit.

IX. The service for which bill 16121 (bill of lading 683) was rendered was performed in 1918 by the Railroad Administration, which presented its bill for $798.41 to the auditor for payment, who disallowed the entire bill on the ground that the Government was entitled to have had its military impedimenta in that amount carried free.

The service for which bill 16165 (bills of lading 306 and 329) was rendered was performed in 1918 by the Railroad Administration, and bill was presented by it. to the auditor in the sum of $385.47 for payment, who disallowed the entire bill on the ground that the Government was entitled to have had its military impedimenta carried free in that amount.

These deductions were adjusted and settled in the final settlement between the War Department and the Railroad Administration by the payment on August 25, 1920, of $38,169,294.39 to- the Railroad Administration for transportation services rendered by the railroads under its control from January 1, 1918, to February 29, 1920, to the War Department.

Protest against payment made or to be made was filed in connection with bills G-13907 and G-14579. There is no record of any other protest in the case.

MEMORANDUM BY THE COURT

The plaintiff', eliminating part of its claims, still claims deductions on account of bills G-14043, G-13907, and G-14579. •

The plaintiff, as the last carrier, presented its bill G-14053 to the disbursing quartermaster for $4,047.04, and on his refusal to pay the same restated the bill for $1,751.25. , This amount the disbursing officer paid plaintiff. Later the amount so paid to plaintiff was deducted from a bill of the Railroad Administration by the auditor on account of free *737baggage. Tlie deduction was not charged against the plaintiff bj^ the Railroad Administration and was not included in the settlement of Ncwember 1, 1920, between plaintiff and the director general. The plaintiff is not seeking to recover the deduction of $1,751.25, but the amount it dropped from its original bill, $2,295.79, when it restated the same at $1,751.25. The plaintiff did not protest at the restatement of bill G-14053, nor does it appear why it was restated. It can not now recover. See *Western Pacific R. R. Co.*v. *United States,*ante, p. 67; *Southern Pacific R. R. Co.*v. *United States, ante,*p. 36; and *Schaff, Receiver,*v. *United*States, *ante,*p. 102.

The plaintiff performed the service for which bills G-* 13907 and G-14579 Avere. rendered by the Railroad Administration as agent to the auditor for $5,200.67 and $6,462.11, respectively. The auditor deducted $3,280.62 from bill G-13907 and $5,203.25 from bill G-14579 on account of free baggage, these deductions making a total of $8,483.87. These amounts were never received by the Railroad Administration or by the plaintiff. The United States still owes the amounts so deducted, and the plaintiff is entitled to recoATer them. See *Missouri Pacific Railway Co.*v. *United States,*56 C. Cls., 341.

Judgment for plaintiff in the sum of $8,483.87.'