#### JACOB M. DICKINSON, RECEIVER OF THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, *v.*THE UNITED STATES 1

[No. 33612.

Decided February 4, 1924;

amended findings June 16, 1924]

*On the Proofs*

*Ownership of property: Consignment of Government; Government hills of lading.*— All property shipped on Government bills of lading *210and consigned to the Government by proper authority is Government proverty while in transitu, although not paid for until after delivery at the place of use.

*Bills presented and paid, at land-grant rates.*— Where bills are presented to a disbursing officer, or the Auditor for the War Department, at land-grant rates by a railroad) company, and paid as presented, the Government is not liable to the company in an action to recover such land-grant deductions.

*The Reporter's*statement of the case:

*Mr. Benjamin Garter*for tlie plaintiff.

*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, the Chicago, Rock Island & P'acific Railway Company, is, and was during the different transactions hereinafter described, a corporation duly incorporated under the laws of the States of Illinois and Iowa, engaged in the operation of a system of railways in the States of Illinois, Iowa, and Arkansas, and others, as a common carrier for hire of passengers and freight. During a part of the time of the transactions hereinafter mentioned plaintiff’s system of railways was in the hands of and operated by Jacob M. Dickinson, who was appointed receiver by a decree of the United States District Court for the Northern District of Illinois, entered on the 20th day of April, 1915. The receiver was relieved by order of the District Court passed June 24, 191,7.

II. In the construction of plaintiff’s line of railways in the States of Iowa and Arkansas aid was received from the Government of the United States by grants of lands and bonds. In the act of Congress granting aid for the construction of the said line in the State of Iowa appears the following :

“ And the said railroad shall be and remain a public highway for the use of the Government of the United States, free from toll or other charges upon the transiDortation of any property or troops of the United States.” Act of May 15, 1856, section 3, 11 Stat. 9; 13 Stat. 95; 17 Stat. 421: 18 Stat. 74; 20 Stat. 132, 390.

In the construction of that portion of plaintiff’s line extending from the Mississippi River, opposite Memphis,

*211Tennessee, to Argenta, Arkansas, over which the transactions hereinafter described, were had, there were also received from the United States grants of lands and bonds. In the various acts of Congress granting said aid appear the following :

“And the said railroad and branches shall be and remain a public highway for the use of the Government of the United States, free from toll or other charges upon the transportation of any property or troops of the United States.” Act of February 9, 1853, section 4, 10 Stat. 155.

*“And provided*further, That all property and troops of the United States shall at all times be transported over said railroad and branches at the cost, charge, and expense of the company or corporation owning or operating said road and branches, respectively, when so required by the Government of the United States.” Act of July 25, 1866, section 1, 14 Stat. 338.

The accounting officers of the United States have at all times consistently held the Arkansas line of the plaintiff to be a line *“*free from toil or other charge ” with the cost, charge, and expense of Government transportation on the carrier.

III. During the years 1909 to 1916 numerous shipments of Government property, consisting chiefly of riprap stone for improving the banks of the Mississippi River, were consigned on regular Government bills of lading to authorized officers of the Corps of Engineers of the United States Army and transported from various points on plaintiff's lines, or connecting lines of other railroads, all in the State of Arkansas, and for the most part from Argenta, Arkansas, to Hopefield, Arkansas. The greater portion of said property was purchased free on board cars at the quarries pursuant to the terms of specifications in invitations to bidders and proposals of bidders which constitute contracts, lawfully entered into between the contracting officers of the United States and the sellers. A limited amount of the stone was purchased in the open market, but the stone so obtained in the open market was bought under the same terms and conditions as that purchased upon invitations and proposals in contracts, that is, free on board cars at the contractors’ quarries and shipped on Government bills of lading to Hopefield, Arkansas.

*212IV. In a contract dated May 20, 1913, entered into between Major E. M. Markham, Corps of Engineers, for the United States, and Martin & Wall, contractors, the latter parties undertook to “ furnish and deliver f. o. b. cars at or near quarry 35,000 tons, more or less, of riprap stone. Upon arrival of this stone at Hopefield, Arkansas, the contractor shall unload the same at the Government stone supply depot at, that point; the contracting- officer agrees to *pay for the stone delivered on the cars*at the rate of 70 cents per ton of 2,000 pounds, and 20 cents per ton of 2,000 pounds for unloading stone at Hopefield, Arkansas, the stone to be shipped by the contractor from points of delivery to Hopefield, Arkansas, upon Government bills of lading.” Article 2 of this contract required “ All materials furnished and work done under this contract shall be subject to a rigid inspection by an inspector appointed on the part of the United States, and such as do not conform to the specifications of this contract shall be rejected.” Paragraph 18 of the specifications contained the following: “ Quality: The stone is for use in revetment work, above and below low water, and must be sound and durable for such use. It shall weigh not less than 1,800 pounds per cubic yard loose pile measurement and shall be in pieces weighing not more than 60 pounds nor less than 10 pounds; at least 75 per cent of the stone shall be in pieces weighing between 60 and 30 pounds. The contractor may be required by the. contracting officer to level off not to exceed 3 per cent of the number of cars in order to determine the weight of the stone per cubic yard loose measurement. Bidders must furnish a sample of and state the kind of stone proposed to be furnished and the location of the quarry.”

Two other contracts for stone, dated November 7, 1914, and July 13, 1915, were also entered into between Major E. M. Markham and the United States Stone Company, of Little Rock, Arkansas, in which the contractor agreed to deliver f. o. b. cars at quarry 40,000 and 20,000 tons, more or less, respectively, of riprap stone under the same provisions and specifications as to use, quality, weight, loading and unloading, and inspection and rejection as provided in the contract dated Majr 20, 1913.

*213None of tlie above contracts has been introduced in evidence, but the. Government official called and examined for the plaintiff as to the purchase, delivery, and use, etc., of the stone produced the contracts and specifications under which the stone was secured for the Government.

V. In every instance, except one where the property moved on the standard form of commercial bill of lading indorsed “Articles listed on this bill of lading are property of the United States,” all shipments of the property in question moved on the standard form of Government bill of lading which described the property as “ public property or the property of the United States.” The bills of lading were accomplished, the property inspected and accepted at the point of destination by the proper Government officials.

The Government form of bill of lading used in the transportation of the articles in question provided on its face for the hauling of Government property only, and the directions on. the back of the same limited their use to Government property.

VI. It is not shown whether the plaintiff or the connecting carrier, when said freights were received at and transported from the points of delivery by the contracts and when plaintiff’s bills were rendered and payment received, was or was not informed of the conditions in the contracts or orders with reference to inspection and acceptances at the point of destination, or when, if thereafter, it was so informed. But it does appear that when the said property was transported it was the understanding of plaintiff’s managers that they belonged to the United States and were consigned to persons in charge of and were for use on Government improvements.

VII. In every instance plaintiff’s freight bills as set out in New Exhibit A, were made out on the standard form prescribed by the Comptroller of the Treasury for statement of accounts against the United States and were presented to the Auditor for the War Department for payment of the. net freight charges after the proper land-grant deductions had been made by the plaintiff when stating the bills. In no case did the plaintiff claim payment upon any other than a land-grant basis. Payment was made to the plaintiff of the full amount claimed on that basis and accepted without pro*214test, with the single exception of one item for which payment was made by disbursing officer on a bill of lading which described the property as that of an officer. In no case was an appeal taken to the Comptroller of the Treasury.

The total amount of land-grant deductions made on said bills was $825,634.11, which included the full amounts accruing at commercial tariffs on tracks of the plaintiff or of connecting carriers which were constructed with aid received under said acts hereinbefore referred to, of which sum $200,058.20 accrued entirety on the tracks of the plaintiff company. The payments included $224.90 of charges for the switching of cars over connecting tracks which were constructed without aid under said acts.

VIII. During the years 1909 to 1916 the plaintiff also transported over its lines for the United States a number of officers and enlisted men, and other persons included in the six classes enumerated in 249 U. S. 354, but the record is silent as to the points of origin and destination of these passengers.

In every case plaintiff’s bills for the said passenger transportation service were rendered on the standard form prescribed by the Comptroller of the Treasury for stating accounts against the United States; that is, on land-grant vouchers which showed the gross charge on each item at commercial rates with land-grant deductions made by the plaintiff and the net charge.

With but two exceptions all the bills for the passenger transportation service were presented by the plaintiff to Government disbursing officers or the Auditor for the War Department for payment of the net amounts claimed at land-grant rates. The full amounts claimed on that basis were paid to plaintiff either by the disbursing officers or the Auditor for the War Department by his certificate of settlement and issue of Treasury warrant. With the exception of items to the amount of $191.35 the payments thus made at land-grant rates as claimed were accepted by the plaintiff without protest, and in no case was an appeal taken to the Comptroller of the Treasury.

The original bills rendered to the Government showed the gross charge on each item with deductions made on account *215of land grant and a net cash charge which was paid by the Government.

IX. Land-grant deductions on some of the passenger movements described in Finding VIII were made between a date prior to December 1,1909, and June 30,1910, amounting to $1,022.25 and were all made more than six years prior to the filing of this suit in this court on June 30, 1916.

X. During river overflows in the spring of 1915, when plaintiff^ tracks were threatened by the waters, plaintiff took a number of cars of stone out of said shipments consigned to the Government and used it for the protection of its tracks. Upon inquiry at the office of the engineer in charge as to how the matter should be adjusted plaintiff was directed to replace the stone. All stone bought by the Government was paid for on presentation of bills of lading signed by the agent of the railroad company at the quarries and the stone confiscated by the railroad company for its own use was replaced in kind.

1

 Appealed.

Gkaiiam, *Judge,*

delivered the opinion of the court:

Broadly speaking, there are but two questions involved herein. The first question is whether the stone was property of the plaintiff or the Government under the contract. The case is for all present purposes on this point ruled by case of *Illinois Central R. R. Co.*v. *United States,*57 C. Cl. 277. The other question is that of setting aside settlements already had between the plaintiff and the defendant. The passengers transported were troops of the United States. The material was the property of the United States. The bills were made out for freight and passenger service by the plaintiff, presented to the disbursement officer and Auditor for the War Department for payment Avith the claim for only net land grant rates; that is, for the difference between the regular commercial rates and the land grant deductions. Payments were made by the defendant to the plaintiff upon the basis of bills presented and payments Avere accepted without protest or appeal to the Comptroller of the Treasury.

This phase of the case is controlled by the cases of *Baltimore & Ohio R. R. Co.*v. *United States,*52 C. Cls. 468; *Oregon-Washington R. & N. Co.*v. *United States,*54 C. Cl. 131; 225 U. S. 339; *Southern Pacific Co., ante,*p. 36; *216*Western Pacific Railroad Co., ante,*p. 67; and. *Northern Pacific Radltoay Co., ante,*p. 122.

The petition should be dismissed, and it is so ordered.

Hat, *Judge;*Doavney, *Judge;*Booth, *Judge;*and Campbell, *OMef Justice,*concur.

MEMORANDUM BY THE COURT

(On plaintiff’s motion to amend findings and for a neAY trial)

Finding III is amended as requested by plaintiff except for some tranposition of phraseology.

Finding VI is amended to read as requested by plaintiff.

As to Finding VII it is requested that the last paragraph be stricken out and a submitted paragraph' inserted in lieu thereof.

This involves, in the main, a change in finding as to the toal amount of land-grant deduction. The amount as stated originally was the amount shown by plaintiff’s new Exhibit A, as accruing over plaintiff’s lines and was so stated upon the theory that it was only such deductions which were within the scope of the petition. There ivas some transportation involving other lines and Ave have amended this finding to include this also in the total, stating in connection therewith the portion accruing OA^er plaintiff’s lines alone. The finding as amended states the amount appearing in plaintiff’s new Exhibit A, but does not state it as noAv requested by plaintiff. Plaintiff submits nothing with its request in support thereof and the amount now asked to be found does not correspond with that asserted in the petition or in the- original requests for findings. The rule requiring a reference to the parts of the record supporting the requested finding has not been complied Avitli.

The requested substituted paragraph concludes Avith the statement that “ All of the shipments covered by said bill occurred before June 30, 1910.” We do not understand the reference and since it is apparent that by that requested finding the plaintiff AA^ould be barred under the six-year statute as to all service within its scope, we assume it to be an inadvertence and have not included it.

With reference to Finding VIII, there is no. objection made to any part of the finding as made but it is requested *217that a submitted paragraph be added. Compliance with this request would result in inconsistency in the finding as amended, and again, the request is not supported. We have modified this finding by eliminating the last paragraph which dealt with amounts, and adding a paragraph now appearing as the last paragraph to that finding, which is an exact quotation of the language of one of plaintiff’s witnesses who at the time involved was its assistant auditor of passenger traffic and which, under applicable authorities cited, seems determinative of the question involved to such an extent that the determination of controverted amounts seems immaterial.

Plaintiff further requests an additional Finding X, but this requested finding is not supported by the record. Upon the subject involved we have added Finding X stated as the transaction appears from the record.

Upon the merits of the case, involved in plaintiff’s motion for a new trial, it is to be noted that in plaintiff's original brief it was said that *u*the case is that which is presented in the Illinois Central Railroad Co., No. 33955,” and that the £‘ common question ” is the ownership while in transit of the commodities involved. This is entirely true and this case, in so far as the stone transportation is concerned, was determined on the authority of that case as decided by this court. The question is now foreclosed by the affirmance of that case by the Supreme Court, May 26. 1924, 265 U. S. 209.

Plaintiff contends that there is one distinguishing feature in this case and that in connection with the settlement for the confiscated stone referred to in Finding X it was said by the Government’s engineer officer that the Government had no concern in the matter and that plaintiff should deal with the quarry'man who had furnished the stone, construed by plaintiff as an interpretation by the Government’s representative that the stone when taken, in transit, was still the property of the stone contractor and not of the Government, but, unfortunately for the contention, the requested finding upon which the contention is based is, as stated above, wholly at variance with the record. The facts are stated in Finding X. The showing in the record of the payment to one Cammack by the plaintiff of a bill for stone furnished *218does not aid the contention. So far as disclosed by the record Cammack was not one of those having contracts with the Government for the furnishing of this stone, but aside from that, the payment of such a bill is entirely consistent with the finding that the plaintiff replaced the confiscated stone in kind, to do which it probably had to buy stone for which it presumably paid. This case has been correctly determined upon the conclusion that the stone in transit was the property of the Government. If not, it would be pertinent to inquire as to the liability of the Government, under plaintiff’s theory, to pay for the transportation of, another’s property.

The plaintiff’s motion to amend findings is sustained in part and overruled in part, the former findings are withdrawn and amended findings are filed in lieu thereof, the former judgment and opinion to stand. The motion for a new trial is overruled.