#### CHARLES E. SCHAFF, RECEIVER OF THE MISSOURI, KANSAS & TEXAS RAILWAY CO. OF TEXAS, v. THE UNITED STATES

[No. A-257.

Decided June 9, 1924]

*On the Proofs*

*Railroad mien: rent (tied bill; amount dropped.*— Where a railroad company, upon refusal of a disbursing officer to pay, restates a bill certifying the amount of the restated bill as correct, it can not recover the amount dropped from its original bill in the restatement.

*Same; “Class A (vet cash) ”; emigrants’ morables.*— Where a railroad company presents a bill to the disbursing officer at the rate of “Class A (net cash),” and said officer refuses to pay the same, and the company restates its bill at Class D, Emigrants’ movables, with land-grant deduction, which the disbursing officer pays and the company accepts under protest, it can not recover the amount dropped in the restated bill.

*The Reporters*statement of the ease:

*Mr. Lawrence A. Occke*for the plaintiff. Britton-A *Gray*were on the briefs.

*Mr. Perry W.*Howard, with whom was *Mr. Assistant Attorney General Robert II.*Lovett-, for the defendant. *Mr. Louis R. Mehlinger*was on the brief.

*830The following are the facts of the case as found by the court:

I. The plaintiff is the receiver of the Missouri, Kansas & Texas Kailway Co. of Texas, a corporation duly incorporated under the laws of the State of Texas, and now operates the system of railways operated, prior to his appointment and qualification as receiver thereof by said railroad company, in said State and other States as a common carrier of passengers and freight for hire and reward, under tariffs published and filed with the Interstate Commerce Commission as required by law.

IT. At the time of the transportation hereinafter described there were in force on the lines of the plaintiff company 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 ano 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 free to each 2¡5 passengers.

III. Prior to July 1, 191G, 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. One of these agreements was entitled “ Revised Western Military Arrangement, ” was dated April 1, 1916, and was in effect from July 1, 1916, to December 31, 1916. It 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 Avithoiit 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. Navjq or U. S. Marine Corps transportation request, will be charged for at the excess baggage rates less lawful land-grant deductions.

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

This agreement also provided that in connection with the transportation of officers and enlisted men and others belonging to the United States Army, United States Navy, and United States Marine Corps, the Government should be allowed a reduction of 5 per cent from commercial fares less lawful land-grant deductions.

IV. In December, 1916, the Quartermaster Department of the Army, in connection with the movement of large bodies of United States troops, shipped from Montgomery, Ala., to San Antonio, Tex., on Government bill of lading WQ-110, dated December 4, 1916, and Government bills of lading WQ-108, WQ.-109, and WQ-111, dated December 9,1916,17 cars of military impedimenta and troop property described on the bills of lading as: “ Tentage, equipment, and baggage.” “Tentage,” “Rations, baggage, kitchen equipment etc.,” “ Tentage, equipment, etc.” The shipments moveo over the lines of the plaintiff and its connecting carriers.

Ar. The plaintiff, as the last carrier, presented its bill to the disbursing quartermaster for $10,332. This bill was stated on the basis of a special rate of double class A for freight moving in “ regular passenger trains or expedited service,” upon the authority of a tariff published and filed by plaintiff with the Interstate Commerce Commission, which provided among other things that military impedimenta, such as forms the basis of this claim, should be classed as “A (net cash)” and that the minimum weight should be 30,000 pounds, and “ when transported in connection with troops in regular passenger trains or expedited service,”' double class “A (net cash) ” rates should be charged. “Net cash”' means that land-grant deductions shall not be made. The evidence does not show that special or expedited service claimed was either requested or furnished. The disbursing quartermaster having refused to pay the bill as rendered, it was restated by plaintiff for $2,132.82, on the basis of class D, the rate applicable to emigrants’ movables and household goods. The restated bill had the following endorsement thereto: “ Payment on basis of class D,accepted *832under protest. Deceiver, Missouri, Kansas & Texas Railway, per M. A. Johnston, Auditor of Receipts.” “ I certify that this account as corrected to the total amount of $2,132.82 is accepted. Receiver, the Missouri, Kansas & Texas Railway of Texas, by M. A. Johnston, Auditor of Receipts.” The disbursing officer paid the plaintiff $2,132.82 as restated in its bill.

VII. On August 7, 1919, over two years after the services •were rendered and payment made by the disbursing officer, the plaintiff through his attorneys protested to the Quartermaster General of the Army against the application of any rates other than those provided by double class “A (net cash) ” for expedited service.

VII. Some time after August 7, 1919, date not shown, the plaintiff presented a supplemental claim to the auditor for the War Department for $8,199.18, the amount dropped when it restated the bill at $2,132.82. This claim was disallowed by the auditor. The auditor in the same settlement disallowed the disbursing officer’s payment of $2,132.82 to plaintiff, upon the ground that the Government was entitled to have had its military impedimenta transported free of charge in that amount in accordance with plaintiff’s tariff of one baggage car free for e'ach 25 travelers traveling-on one ticket offered to the general public. The amount so disallowed, $2,132.82, was deducted from a balance due plaintiff by the United States.

VIII. The correct amount for the service performed by plaintiff, computed in accordance with plaintiff’s only tariff applicable to military impedimenta, “ class A (net cash),” without land-grant deduction and without special or expedited service, was $4,182.

MEMORANDUM BY THE C'OTJRT

1. The plaintiff is entitled to the amount for which it restated its bill ''at $2,132.82, which, having been paid, was afterward deducted from subsequent bills.

2. Having restated its bill upon the refusal of the disbursing officer to pay it and then certifying that the amount as corrected was accepted, the plaintiff can not assert claim to the balance of its bill as originally stated. If the amount *833was not correct it should not have beeii accepted. See *Western Pacific R. R. Co. case, ante, p. 67; Southern Pacific Co. case, ante, p. 36; Illinois Central R. R. case,*265 U. S. 209.

3. The correct amount computed in accordance with the only tariff applicable and without land-grant deductions was, as shown by Finding VIII, much less than the original bill that plaintiff presented; but, as already stated, plaintiff presented its restated bill to the disbursing officer and received the amount which that officer was 'authorized to pay. There was no expedited or special service, and the bills were not exempt from proper land-grant deductions. It has been held by this court that the statement of class A (net cash) tariff was not sufficient to exempt the bills from proper land-grant deductions.

Judgment for plaintiff in the sum of $2,132.82, under Finding. V. The petition as to all other items is dismissed.