#### LOUISVILLE & NASHVILLE RAILROAD COMPANY v. THE UNITED STATES

[No. B-179.

Decided May 12, 1924]

*On the Proofs*

*Railroad rates; mistake in application of proper tariff.*— Where a railroad company in making up a freight bill overlooks a tariff in force superseding the tariff used an'd allowing a higher rate, and the bill is paid by the auditor as presented, he also believing the proper tariff has been applied, the company is entitled to recover the difference between the correct amount and the amount paid.

*679*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 TI. Lovett,*for the defendant.

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

I. Plaintiff is a corporation organized under the laws of the State of Kentucky and owns and operates a system of railroads in various States. Some of its lines of railroad were built with the aid of lands granted by Congress to it or to some of its predecessors in title.

II. By agreements between the United States and the railroad companies, including plaintiff which were in effect during January and February, 1921, the lowest rate that would be afforded upon any line on account of land grant was made applicable to all other and competing lines between the same terminal points.

III. During the month of January, 1921, the plaintiff and its connecting lines transported a shipment of fir lumber, property of the United States, amounting to 127,320 pounds, from Ostrander, State of Washington, to Frankfort, Kentucky. This shipment moved on the form of bill of lading prescribed by the Comptroller of the Treasury for general use in the Government service, the bill of lading being numbered 31950. The shipment went from Ostrander by way of Chicago and Louisville to Frankfort, Kentucky, terminating on one of plaintiff’s lines, which it reached at Louisville. Between Ostrander and Louisville parts of the lines had been land-aided and therefore the freights were subject to land-grant deductions.

IY. The plaintiff as the terminal or delivering carrier was charged to collect the proper compensation and prepared its bill thereon which was presented to the Auditor for the War Department. The bill was numbered 7738 and the amount of it $762.42.

Y. This bill for $762.42, presented as aforesaid, was paid by Treasury warrant No. 54053 on May 10, 1921, on certifi-c'ate to the Secretary of the Treasury No. 6586, April 30, 1921, submitted by the Auditor for the War Department. *680This payment was received by plaintiff without objection and was in the amount of the bill which had been rendered as above stated.

VI. In making up said bill the tariff authorities used were Countiss I. C. C. 1055, Kelley’s I. C. C. 833, and Speiden’s I. C. C. 403, 'and in using these tariff authorities in computing the amount of the proper bill the employees of the plaintiff in charge thereof who were not familiar with western tariffs overlooked the fact that said tariffs had been superseded by supplement No. 8 to Kelley’s tariff I. C. C. which granted to the carriers an increase in rates oArer the tariffs used.

VII. The correct amount of the bill Avhen rates are applied in accordance with said supplement and land-grant deductions made is $885.61. Something more than a year after payment of the bill as rendered liad been made the plaintiff applied for an additional allowance on the auditor’s settlement by filing a supplemental bill in which it claimed the difference between said two amounts, namely, $123.19. The Assistant Comptroller Gener'al, on January 30, 1922, on appeal, disallowed plaintiff’s supplemental claim on the ground that under the provisions of the Dock-ery Act (28 Stat. 207) the settlement by the auditor is final and conclusive unless a revision thereof is obtained in the manner prescribed by said act. That act provides that 'any person accepting payment under settlement by an auditor shall be thereby precluded from obtaining a revision of said settlement by the comptroller as to any items on which payment is' accepted.

When plaintiff came to settle with its connecting lines for said bill the Oregon-Washington Railroad & Navigation Company, which was one of .the connections, took exception to the-portion of the revenue due the western lines upon basis of settlement in the sum of $762.42. This led plaintiff to an investigation of the tariffs, which investigation developed that a mistake had been m'ade by its employees whereby they had omitted from their consideration in making up the bill the supplement above mentioned. The gross revenue to the railroads over which said shipment moved betAveen Ostrander and Louisville was $1,368.69 and the net revenue *681after land-grant deductions was $796.49. The revenue accruing between Louisville and Frankfort was $89.12, making the total revenue upon the correct rate for said movement $885.61, which is $123.19 more than plaintiff was paid.

Campbell, *Chief Justice,*

delivered the opinion of the court:

There is no doubt that if the plaintiff had presented its bill originally for the amount now claimed instead of the lesser amount it would have been paid by the Auditor. The shipment moved from Ostrander, in the State of Washington, to Frankfort, in the State of Kentucky, and a considerable portion of the lines over which it moved was land-aided. In making up the freight bill the plaintiff’s employees, unfamiliar with western tariffs, overlooked a published tariff which superseded certain other tariffs, and used the latter. The tariff which was overlooked allowed a higher rate to the carrier. It was, of course, the duty of the plaintiff as the terminal carrier to present the bill in the proper amount authorized by the published tariffs and with lawful deductions. As between the carrier and the individual it would be its duty under the statute to collect the proper tariff rate. See *Louisville*& *Nashville R. R. Co.*v. *Maxwell,*237 U. S. 94; *Pittsburgh &c. Ry. Co.*v. *Fink,*250 U. S. 577. There is no dispute about the fact that the plaintiff’s employees made a mistake in applying the tariff rates, The mistake having occurred, and the bill having been paid, there could be no relief in the accounting office because of the provisions of the Dockery Act — no application for a revision having been made for more than a year after payment.

There is no analogy between the case thus presented and a number of other cases that have been before this court in which the carrier has presented a bill to disbursing officers and accepted less than they claimed was due, or restated its bill because a disbursing officer would not pay the amount that was claimed. The bill presented in this case was supposed by both parties to be correct. There was no restatement of its bill; there was no refusal to pay the bill as stated. The error was in failing to follow the correct tariff rate, and it seems that this error was not discovered until after the *682plaintiff had received the money and was accounting to the initial carrier for its portion of it. In these circumstances, and confining the decision to the peculiar facts of the case, we think the plaintiff is entitled to recover. Judgment is therefore awarded for the amount which concededly was due in the first instance, to' wit, $123.19.

Hay, *Judge;*DowNey, Judge, and Booth, Judge, concur.