#### CHICAGO GREAT WESTERN RAILROAD COMPANY v. THE UNITED STATES

[No. B-72.

Decided February 4, 1924]

*On the Proofs*

*Railroad rates: combination of party rate Kith individual*rate.— Where the only through interstate tariff rate between two points is the individual rate, through transportation of a party should be charged at that rate, and a less rate can not be constructed by combining the party rate applicable to part of the distance with the individual rate applicable to the remainder.

*Iiills presented and paid in proper amount: erroneous deductions; protest.*— Where bills are presented by a railroad company in the proper amount and paid by the disbursing officer as presented, and erroneous deductions are made by an auditor under protest on account of such payment from subsequent bills of said company, the same may be recovered back in a suit by the company.

*The BeportePs*statement of the case:

*Messrs. Thomas P. Littlepage*and *Sidney F. Taliaferro*for the plaintiff.

*219*Messrs. Perry W. Howard*and *Louis B.*Mehlinger, 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 organized and existing under and by virtue of the laws of the State of Illinois, and prior to and at the time when the services hereinafter mentioned were performed was engaged as a common carrier of freight and passengers for hire. During said time it operated a line of railway in and through various States of the United States, including the States of Minnesota, Iowa, Illinois, Missouri, Kansas, and Nebraska.

Plaintiff has at all times borne true allegiance to the Government of the United States and has not in any way voluntarily aided or abetted or given encouragement to rebellion against said Government.

No assignment or transfer of the claim involved in this suit, nor any part thereof, lias at any time been made by the plaintiff.

II. On July 10,1916, plaintiff’s said railway line, together with the intersecting or connecting lines of the Kansas City Southern, Texas & Pacific, International & Great Northern, San Antonio & Aransas Pass, and St. Louis, Brownsville & Mexico Railroads, formed a continuous line of railway, connected by a switching arrangement with the Chicago, Milwaukee & St. Paul Railway Co. for transportation from Fort Snelling, Minn., to Llano Grande, Tfex., said intersecting or connecting roads being independent and not subsidiaries of the plaintiff.

III. On said date of July 10, 1916, the duly authorized officers and agents of the United States procured from the plaintiff, on United States War Department transportation requests Nos. WQ 97439, WO 97442, and WQ 97445, which called for transportation at the “lowest rate,” transportation for three parties of troops of the United States Army, consisting of 416, 344, and 312 men, respectively, a total of 1,072 officers and men, from Fort Snelling, Minn., to Llano Grande, Tex. Said officers and men were transported between Fort Snelling and Llano Grande via the following *220route: Switching service by Chicago, Milwaukee & St. Paul Railway Co., between Fort Snelling and St. Paul, Minn.; Chicago Great Western Railroad Co. (the plaintiff), from St. Paul to Kansas City, Mo.; Kansas City Southern Railway, from Kansas City to Texarkana, Ark.; Texas & Pacific Railroad Co., from Texarkana to Longview, Tex.; International & Great Northern Railway Co., from Longview to San Antonio, Tex.; San Antonio & Aransas Pass Railway, from San Antonio to Sinton, Tex.; and the St. Louis, Brownsville & Mexico Railway, from Sinton to Llano Grande, Tex.

IV. At the time of the application for and furnishing of the said transportation the Government, by reason of certain equalization agreements between it and the plaintiff and other roads, furnishing the transportation, was entitled to the lowest net rate of fare available to it via the route cheapest to it for such transportation, between the terminal points of the movement, regardless of the rates over the roads-over which the transportation was actually effected.

V. At said time of the application for and furnishing of said transportation there was in effect between the Government and a large number of railroad companies, including the plaintiff and the other roads over which said transportation was effected, an agreement known as the Western Military Agreement, which was entered into under date of April 1, 1,916, to become effective July 1, 1916, and which contained, among others, the following provisions:

“ (4) The fares authorized herein shall be five (5%) per cent less than the properly constructed net fares between competitive points', with a maximum reduction of one dollar and fifty cents ($1.50) per capita.

“ (5) In the construction of net military fares having origin and destination within the territory west of and including Chicago, St. Louis, Memphis, Vicksburg, and New Orleans, party fares to or from St. Louis and Kansas City only may be combined with party fares to and from those gateways only, and party fares to and from St. Louis and Kansas City may be combined with individual fares to and from those gateways only. Two or more party fares, nor a party fare and an individual fare, on either side of St. Louis and Kansas City may not be combined in establishing the basing fare to or from St. Louis or Kansas City.

*221“ (c) Net fares established on combinations made under sections *(a)*and (&) apply via usual one-way ticketing routes carrying short-line fares, or via routes specifically equalizing net fares so made, but shall be restricted to usually traveled routes, for military traffic from starting point to destination»

“ (e) The intent of this agreement is that where through farés are published no combinations of fares whatsoever are to be made, except as specified in sections *(a)*and (5) herein.

“ (/) This agreement precludes the combination of mixed classes of fares like party fares with party fares and. party fares with individual fares over interior junctions or gateways, other than those (Chicago, St. Louis, Memphis, Vicksburg, New Orleans, and Kansas City) authorized herein, or upon bases other than those specifically authorized herein.

“(17) The concessions in fares, afforded by this agreement (supplements thereto or reissues thereof) as a whole, are made a condition precedent to:

*“(a)*The observance of the fares authorized herein, regardless of possible lower combinations, until such fares automatically change with the commercial fares upon which they are based, except as specifically authorized herein.

“(&) The nonuse of two or more Government transportation requests for the purpose of reducing the fares authorized herein.”

*“(c)*The nonuse of mixed fares (like a combination of party fares and individual fares) in the construction of through net fares, except as specifically authorized herein.”

VI. Under date of August 16,1916, the plaintiff billed the United States Quartermaster at Chicago for the transportation of said 1,072 officers and men at a net per capita rate of $31.92, making a total of $34,218.24, which bill was paid in full by said quartermaster on or about October 9, 1916. This per capita fare of $31.92 was arrived at by taking the sum of the published or commercial individual through rate from St. Paul, Minn., to Sinton, Tex., $36.97, and the commercial individual rate of $4.60 from Sinton to Llano Grande, amounting to $41.57, and subtracting therefrom a land-grant, deduction of $8.15 allowable to the Government, and also the maximum deduction of $1.50 per capita allowable to the Government under section 4 of the said western military agreement, referred to in Finding V.

Thereafter the Auditor for the War Department claimed that an overpayment of $2,551.36 had been made on plain*222tiff’s said bill, which amount the plaintiff was requested, on or about May 1, 1917, to refund to the Government. This the plaintiff by letter of June 26, 1917, protested and declined to do; and said amount was subsequently, on or about October 3, 1917, deducted by the Government from amounts due the plaintiff from the Government on other transportation bills rendered by plaintiff under date of June 11, 1917. This deduction was subsequently reduced to $2,497.76 by the allowance and refund to the plaintiff of 5 cents per capita for said troops, amounting to $53.60, on account of the Government’s calculation of the per capita rate of fare being-based upon Mercedes, Tex., as the terminus off transportation, whereas the actual terminus of the transportation was Llano Grande, Tex., which called for a five-cent addition to the per capita rate to Mercedes.

The final amount realized by the plaintiff from the Government on account of said transportation was thus $31,-720.48, this being at a per capita rate of $29.59 for said troops, which rate was arrived at by the Government as follows:

“ Individual rate, St. Paul, Minn., to Chicago, Ill., $9.50, less $2.05 land grant, $7.45.

“Party rate Chicago to Shreveport, La., via St. Louis, Mo., and Texarkana, Ark., $17.40, less $7.46 land grant, $9.94.

“Party rate Shreveport to Llano Grande, Tex., $12.35, less 15 cents land grant, $12.20.”

VII. The plaintiff, by letter of June 26, 1917, to the quartermaster at Chicago, protested against said rate of $29.59 applied by the Government, and on July 10, 1917, rendered a supplemental bill for the said $2,551.36 deducted and withheld from plaintiff, as set forth in Finding YI, payment of which bill was disallowed by the Auditor for the War Department, with the exception of the payment to plaintiff of the additional $53.60 on account of fare' from Mercedes to Llano Grande, as set forth in said Finding YI.

On June 13, 1918, plaintiff appealed to the Comptroller of the Treasury from the action of the auditor in said dis-allowance, and the comptroller, by a decision of August 23, 1918, appeal No. 28090, affirmed the auditor’s action.

On September 9,1921, plaintiff applied to the Comptroller General for a reconsideration of the Treasury’s said de-*223cisión of August 23,1918. Said application was not granted, and no part of said $2,497.76, so withheld by the Government, has ever been paid the plaintiff.

Booth, Judge,

delivered the opinion of the court.

This case is not within the decision of the court in the cases of *Baltimore & Ohio R. R.*Co., 52 C. Cls., 568; *Oregon-Washington R. & N.*Co., 54 C. Cls., 131; 255 U. C., 339: *Western Pacific R. R. Co., ante,*p. 67; *Southern Pacific Co., ante,*p. 36; and *Northern Pacific Ry. Co., ante,*p. 122. It is to be noted that the plaintiff company presented its bills to the quartermaster for the full amount claimed, and the bill as so presented was paid in full. Afterwards the Auditor for the War Department claimed an alleged overpayment of $2,551.36, and requested a refund of this amount. The plaintiff protested and declined to refund, whereupon the auditor, on October 3, 1917, deducted this amount from other transportation bills due the plaintiff for other transportation service. The auditor la,ter discovered an error in this deduction and reduced it accordingly. The plaintiff, protesting against the action of the auditor to the quartermaster at Chicago, filed a supplemental bill for $2,551.36, the amount deducted, predicated upon its original claim of a peí1 capita rate of $31.92 instead of $29.59 applied by the auditor, and upon the disallowance of this claim the plaintiff prosecuted it through all the stages fixed by law to which recourse might be had. No part of said $2,497.76 was ever received by plaintiff in the adjudications of the controversy concerning it. It is apparent, therefore, that the case is one for judgment. See *Atchison, Togeha Santa Fe By. Oo.*v. *United States,*256 IÍ. S. 205. The findings show an application to the Comptroller General for a reconsideration of the decision of August 23, 1918, was made on September 9, 1921, and this suit brought in April, 1922. While a greater degree of diligence would not have prejudiced the case, nevertheless 'the lapse of time, considering the successive steps taken, is not sufficient to warrant us in this particular instance m Implying an acquiescence in the rulings made. Obviously, the plaintiff was not content with the decision of the comptroller. Plaintiff’s cause of action did not arise until the *224auditor made the deduction in May, 1917, and .thereafter the plaintiff company pursued its remedy under the accounting statutes to a finality. At no time did it acquiesce in the final ruling of the comptroller made in September, 1921.

Judgment for plaintiff in the sum of $2,497.76. It is so-ordered. „

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Campbell, *Chief*Justice, concur.