#### LOUISVILLE & NASHVILLE RAILROAD COMPANY v. THE UNITED STATES1

[No. 33824.

Decided October 20, 1924]

*On the Proofs*

*Railroad rates; cash fares; land-grant deductions.*— Tariffs providing for cash fares without Jand-grant deductions can not operate to defeat the land-grant statutes, and proper land-grant deductions made by officers of the Government can not be recovered by suit in the Court of Claims.

*Same; special service.*— The special service provided for in Table A (Finding VIII), was intended to apply to the division of fares among carriers themselves and not to affect fares charged against the Government.

*Same; switching charges.*— Where the tickets on which troops moved called for and ended at Montgomery, Ala., the railroad company was entitled to be paid the switching charges from Montgomery to Camp Sheridan.

*The Reporter's*statement of tlie case:

*Mr. Benjamin Ga/rter*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 Kentucky, and during the times of the different transactions hereinafter described in these findings of fact owned and operated and still owns and operates a system of railroads in said State and the States of Indiana, Illinois, Virginia. Tennessee, Georgia, Alabama, Mississippi, and Florida. Two of plaintiff’s lines, one extending from Decatur, Alabama, to Pensacola, Florida, and the other from Pensacola to River Junction, Florida, were built with the aid of public land granted by Congress to the predecessor in title of the plaintiff company.

II. From August 10, 1911, to April 4, 1917, dates inclusive, large numbers of officers and enlisted men of the United States Army and Navy were transported by plaintiff over its lines on Government transportation requests issued *887by proper authority. In some instances a single passenger would be transported on a transportation request, sometimes more than one but less than ten would be transported on one transportation request, and sometimes ten or a- greater number would be transported on one transportation request.

III. There were individual passenger rates for the public in force on plaintiff’s lines at the time the transportation in question was furnished, fixed tariffs being duly filed with the Interstate Commerce Commission, as required by law. There was in addition to such individual tariff rates, certain party rates open to the public in force on plaintiff’s lines at that time by which ten or more passengers, travelling by scheduled trains, were entitled to reduced rates. Some of these party-rate tariffs provided that cash should be paid at the time the tickets Avere issued and that there should be no land-grant deductions made from such party rates. Others provided neither for cash at the time the tickets were furnished nor against land-grant deductions from such party rates.

IV. The plaintiff as the initial carrier presented its bills to the proper disburing officers on forms prescribed by the Comptroller of the Treasury, and obtained by requisition on the Public Printer, Avho Avas required to print and distribute such voucher forms. Where ten or more persons were transported in a troop movement, the plaintiff billed them at individual rates less proper land-grant deductions where the rates thus obtained Avere the lowest rates; where such net rates were equal to or higher than party rates in force, party rates without land-grant deductions Avere used by plaintiff in its bills. When plaintiff’s bills came before the accounting officers for settlement land-grant deductions Avere made from party rates, and where individual rates Avith land-grant deductions were made, party rates Avith land-grant deductions were applied by said accounting officers. The plaintiff filed protests against the deductions from every one of plaintiff’s bills except Bill No. 2402.

There Avere two forms of Awichers prescribed as aforesaid, procurable from the Public Printer, (1) one for use where no land grant was inwffved, with columns each for class, number of passengers, rate, and amount, and (2) one *888where land grant was involved, with columns each for total mileage, land-grant mileage, class, number of passengers, rate, gross amount, amount to be deducted account of land-grant, and amount claimed. On both forms was the following certificate: “ I certify that the above account is correct and just; that the services have been rendered as stated; that payment therefor has not been received; and that the rates charged are not in excess of the lowest net rates available for the Government, based on tariffs effective the date of service.” Where, plaintiff made no land-grant deductions it made out its1 bills on the first form described above; where it made land-grant deductions it made out its bills on the second form described, above.

Y. The land-grant deductions made from plaintiff’s bills under party tariffs in force providing for payment of cash at the time the tickets were furnished and against land-grant deductions, amounted in the aggregate to $23,399.26. The land-grant deductions made from plaintiff’s bills under party tariffs in force, making no provision for payment of cash at the time the tickets were furnished nor against deductions for land grant, amounted to $441.44.

VI. The total land-grant deductions made from the different items of bill No. 2402 by the accounting officers amounted to $1,189.36, and this amount is embraced in the sum of $23,399.26, set out in Finding V. There were no protests made by plaintiff against the deductions from different items of said bill No. 2402.

VII. There was in force on plaintiff’s lines during the time of the different troop movements mentioned above, a tariff described as the “ Western Railway of Alabama Switching Tariff, No. 362,” and “ Supplement No. 1 ” thereto, which fixed a switching charge of $5 per car between Vandiver Park (Camp Sheridan), an Army camp, and Montgomery, Alabama. During the troop movements described above, twenty-four cars of plaintiff loaded with troops were switched between said camp and Montgomery. The tickets issued to said.troops started from or ended at the station in Montgomery, and the travel between Montgomery and Van-diver Park, four miles distant, if switching charges are not alloxved, would be performed without compensation. The total sxvitching charges amount to $120.

*889VIII. Bill No. 2675 was rendered to the Army disbursing officer for the transportation of 1,988 United States troops on September 15 and 26, 1917, as special-service charges between Hattiesburg and Camp Shelby, Mississippi, in addition to their per capita fares, for one standard sleeper, $10; three 16-section tourist cars, $30; forty-six coaches, $460; five standard. Pullmans, $50; fifteen baggage cars, $75; aggregating $625. Bill No. P-2685 was rendered to said disbursing officer for the transportation of 134 passengers on September 28, 1917, as the minimum special train service charge between Hattiesburg and Camp Shelby, Mississippi, in addition to the per capita fares, for three coaches and one baggage car, $50, aggregating for the two bills, $675. There is nothing in the evidence to show that special or expedited train service between Hattiesburg and Camp Shelby was requested by the Government-.

The tariff in force when said troojis were transported was as follows:

Tabue *A*— Effective *July 7,1917*— Hattiesburg, *Miss, (damp Shelby)*

BASIS EOR MAKING THROUGH RARER

In constructing through fares and distances to Camp Shelby, Miss., add the folloiving amounts and distances published to Hattiesburg, Miss.:

One-way individual, 32$.

One-way per capita party (10 or more on one ticket), 32$.

Distance from Hattiesburg, Miss., to Government camp station, 10.5 miles.

DIVISION REQUIREMENTS

On traffic received from or delivered to connecting lines at Hattiesburg, Miss., the Mississippi Central Bailroad and Gulf & Ship Island B. B. will require the following specifics between Hattiesburg and Camp Shelby in each direction :

For individuals, 32$ per capita.

For parties (10 or more on one ticket), 32$ per capita.

For each passenger coach, dining or sleeping car, in service, $10.

For each baggage car in service, $5.

Special train service is necessary in all cases; minimum charges $50 from Hattiesburg, Miss., to Camp Shelby, Miss.

*890IX. Bills Nos. P-2701 and 2703 were rendered to the said disbursing officer for the transportation of 460 United States troops, on October 9 and 12, 1917, as special service charges between Montgomery and Camp Sheridan, Alabama, in addition to their per capita fares, for nine tourist- sleepers, $45.00, three baggage cars, $9.00, and two- coaches, $10.00, a total for the two bills of $64.00. There is nothing in the evidencie to show that special or expedited train service between Montgomery and Camp Sheridan was requested by the Government.

The tariff in force when said troops were transported was as follows:

Tabee *A.*— Effective *July 7,1917*— Vandiver Park, *Ala. (Gamp Sheridan)*

BASIS FOR MAKING THROUGH FARES

*Easfbouncl.*— In constructing through fares and distances to Vandiver, Park, Ala., add the following amounts and distances to fares and distances published to Montgomery, Ala., not to exceed fares and distances published to Opelika, Ala.:

One-way individual, 10$.

One-way per capita party (10 or more on one ticket), 10$.

*Westbound.*— In constructing through fares and distances to Vandiver Park, Ala., use fares and distances published to Montgomery, Ala.

DIVISTON REQUIREMENTS

On traffic received from or'delivered to connecting lines at Montgomery, Ala., the Western Ey. of Ala-., will require the following specifics between Montgomery, Ala., a-ncl Vandiver Park, Ala., in each direction.

For individuals, 10$ per capita.

For parties (10 or more on one ticket) 10$ per capita.

For each passenger coach, dining, parlor, or sleeping car, in service, $5 the fare in each car to apply on minimum.

Where special train service is necessary, minimum of $50.00 will be required in each direction, whether one car or more.

For each baggage car, in service, $3.00.

1

 Appealed.

*891Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff bases its claim for the refund of land-grant deductions upon the requirements in certain party rate tariffs of cash at the time tickets are furnished with no land-grant deductions from the rates fixed in such tariffs. Its contention is that the requirement of cash payments excludes any idea of land-grant deductions from charges at party rates. But this contention can not be upheld. Nor can the Government be excluded from taking the tariff rates less land-grant deductions. The plaintiff, when the transportation was furnished, did not stand upon the cash requirement, but, as initial carrier, issued the necessary tickets and sent in its bills for the transportation to the disbursing officer on a credit basis. The Government from the very nature of things can not be required to deal with the railroads on a cash basis for transportation. The ticket agents are unable to figure out land-grant deductions, and it would take time and delay to have the rates figured out by experts. The law contemplates that payments by the Government shall be made only after the bills have received the approval of certain designated officials. The bills must go through a regular routine inspection. This court held in *Louisville & Nashville R. R. Co.*v. *United*States, 58 C. Cls. 622, that failure of the Government to pay. cash for tickets, as required by certain tariffs in force, did not relieve the company from land-grant deductions. See also *Illinois Central R. R. Co.*v. *United*States, 58. C. Cls. 182.

As to the items growing out of so much of the transportation as was between Montgomery and Camp Sheridan and between Hattiesburg and Camp Shelby, we can not agree with the contention that there was any special or expedited sendee contracted for on the one hand, or an additional special service provided for in the tariffs on the other hand. The tariffs provided for a through rate to Montgomery or to Hattiesburg as the case may be, and also provided that in constructing through rates to the camps in question certain amounts and distances should be added to the published rates to Montgomery or Hattiesburg. The amount to be added for individual fare is settled and the amount for *per**892*capita*party of ten or more on one rates are stated for the benefit of the connecting lines as well as for the public. When constructed on the prescribed basis, the rates would be those at which the individual or party would be entitled to transportation to the point of destination, one of the camps. The accounting officers have proceeded in such cases upon the view that the reference to “special train service” under the heading in the tariff of “ Division requirements ” is a matter between the carriers themselves and provides for the absorption by the terminal carrier of the minimum requirement on account of the special train service, when the revenues exceeded the-minimum requirement, and the taking care of this minimum requirement by other carriers where the revenue is not equal to or in excess of this minimum. It seems to us the view of the accounting officers is the more reasonable one. Certainly the rate provided for an individual or for a party of ten or more individuals would apply to the individual or party, and these would not have to pay more because of the stated “special train service.” Nor does the Government have to pay more than these party rates. There was no special or expedited service contracted for.

As to the switching charge from Montgomery to Camp Sheridan, the tickets on which the troops moved called for and ended at Montgomery. The plaintiff is entitled to be paid for the additional transportation from Montgomery to the camp.

Judgment for plaintiff in the sum of $120.

Hay, *-Judge;*Dowhey, *Judge;*and Booth, Judge, concur.