#### ST. LOUIS, BROWNSVILLE & MEXICO RAILWAY COMPANY v. THE UNITED STATES1

[No. B-180.

Decided January 7, 1924.]

*On the Proofs*

*Settlement by auditor; no protest or application for review; allowance received.*— Where a claim is presented by a railroad company to the Auditor for the War Department for direct settlement, and after settlement no application for review or protest against said settlement is made, and the allowance by the auditor is received by the company, there can be no recovery by the company in the Court of Claims.

*items of damn involved in prior suit.*— Where items of a claim were involved in a prior suit in which judgment was rendered in favor of the plaintiff, it can not recover such items in a subsequent suit in the Court of Claims.

*The Reporter's*statement of the case:

*Mr. Lawrence A. Calve*for the plaintiff; *Britton <& Cray*were on the briefs.

*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 common carrier by railroad, whose tariffs of charges for the service of transportation are duly published and filed with the Interstate Commerce Commission in accordance with law.

II. At the time of the transportation hereinafter mentioned there were in force on the lines of the plaintiff 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 militar}'- impedimenta were moved, which stated in substance and 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 twenty-five passengers.

*83III. Prior to July 1, 1916, the plaintiff, with other railroad carriers of the United States, entered into a certain agreement with the United States Government, entitled *“*Revised western military arrangement,” which was in effect from July 1, 1916, to December 31, 1916. It provided generally that in connection with the transportation of officers and enlisted men and others connected with the United States Army, United States Navy, and United States Marine Corps, the Government would be allowed a reduction of five per cent from commercial fares less lawful land-grant deductions. 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 t ransported without 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. Navy, or U. S. Marine Corps transportation request, will be charged for at the excess baggage rates less lawful land-grant deductions.”

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

Prior to January 1, 1917, the plaintiff, with other railroad carriers, entered into another and similar agreement with the United States Government, entitled “ Interterri-torial military arrangement 1,” which was in effect from January 1, 1917, throughout the year 1917. It also provided that in connection with the transportation of officers and enlisted men and others connected with the United States Army, United States Navy, and United States Marine Corps, the Government would be allowed a reduction of five per cent from commercial fares less lawful land-grant deductions. It contained among other provisions the following:

“ XV. BAGGAGE

“(1) One hundred and fifty (150) pounds of personal effects, properly checkable as baggage, under the tariff of the initial carrier, will be transported without charge for each person. Personal baggage in excess of the free allowance stated when provision for the transportation of the *84excess baggage is specially made in United States Army, Navy, or Marine Corps transportation requests and is paid for by the United States Government, will be charged for at regular excess-baggae rate, based upon the net individual fare. When provision is not made in the transportation request for the transportation of excess baggage, collection will be made from the traveler at the regular commercial rate for weight in excess of the free allowance stated. Excess baggage charges will not be subject to allowances applicable in connection with the fares for tickets under this arrangement. Baggage ‘ regulations in other respects than above will be in accordance with the tariff of the initial carrier checking the baggage in each case.

“(2) Company, battalion, regimental, or Government property is not included in the above.”

IV. At various times during 1916 and 1917 the plaintiff carried for the United States Government, upon bills of lading issued by officers of the United States Army having authority for that purpose, certain shipments of “military impedimenta,” as stated in Exhibit A to the plaintiff’s petition, consisting in part of guns, ammunition, caissons, tents and tent poles, beds, grains and forage for animals, horses, wagons, stoves, kitchen outfits, and other miscellaneous equipment, all being the property of the United States.

V. For the said transportation service the plaintiff, as delivering carrier, submitted its bills based upon lawful freight .tariff rates less proper land-grant deductions. On the said bills the accounting officers and disbursing officers of the Government made numerous disallowances and deductions. Some of these disallowances Avere based on the application by analogy of rates of class D, published for the transportation of emigrants’ movables and household goods, to which the Comptroller of the Treasury had held the Government was entitled AA'hen shipping military impedimenta. The remainder of the disalloAvances were on the ground that under certain rulings of the Comptroller of the Treasury the Government was entitled to the carriage of one carload of military impedimenta free with each twenty-five passenger fares, on the authority of the special baggage-car tariffs referred to in Finding II, *swpra.*

VI. For the transportation furnished subsequently to August 22, 1916, the difference between the amount alleged *85to be due on the basis of regularly published freight rates less proper land-grant percentages, and the amount paid by the Government on the basis of the emigrants’ movables rate of class D and the special baggage-car tariffs referred to in Finding III, *supmy*is $5,820.77. This total is made up of the following items, as shown in Exhibit A to plaintiff’s petition:

VII. Of the items mentioned in Finding VI, bills No. 3377 and No. 4001, on which the differences shown above are $160.10 and $751.05, respectively, were paid by disbursing officers of the War Department as rendered and claimed. Subsequently, upon settlement of the disbursing officers’ accounts by the Auditor for the War Department, the disbursing officers’ payments were disallowed to the extent of the amounts claimed herein upon these two items. The amounts so disallowed in the disbursing officers’ accounts were deducted from bills due the United States Railroad Administration. A settlement was thereafter made between the Railroad Administration and the plaintiff. It is conceded in this case by plaintiff that it can not recover on these two items of claim, and it relinquishes its claim on account of them.

VIII. Bills No. 3055 and No. 4732, shown in Finding VI, on which the differences claimed are $2,604.34 and $566.80, respectively, were included in the aggregate sums claimed by plaintiff in its petition filed September 20, 1920, in case No. 34697. In that petition the amount claimed on account of bill No. 3055 was $1,257.50 and on account of bill No. 4732 was $525. The findings of fact in that case were based upon a stipulation of parties and judgment was rendered in favor of plaintiff in the sum of $22,624.78. This judgment *86was paid. One of the findings of fact (Finding VIII) in said case stated that “ the numbers and amounts referred to in the foregoing paragraphs constitute the component parts and sum total of the said $22,624.78 and are the only items in question in the case at bar.” Bills No. 3055 and No. 4732 are not mentioned in the findings in that case. The report of the Treasury Department filed in said case and upon which the said stipulation of facts was based stated as to bills No. 3055 and No. 4732 that because no deduction had been made “ from these bills on account of the cause of complaint set forth in petition, nothing is due in recovery.”

IX. Bill Gr-480, referred to in Finding VI, was a claim under bill of lading for $2,549.08, which was settled by the. Auditor for the War Department May 10, 1920, and by that settlement was reduced in the sum of $1,6'92.96. The amount allowed by the auditor was accepted by the plaintiff without objection or protest. No appeal to the comptroller for revision of the auditor’s settlement was taken by the plaintiff. The reduction was made by the auditor to adjust to basis of one car free for each unit of twenty-five fares.

1

 Appealed.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff’s petition sets forth seven different items of claim. Of these, two bills, 1893-A and 2259 — A, are barred by the statute of limitations of six years, and they are abandoned on that account by the plaintiff. The plaintiff also relinquishes any claim on account of bills No. 3377 and No. 4001, these bills having been paid in full to the plaintiff by the disbursing officer. Afterwards, on settlement of this officer’s account by the Auditor for the War Department, his account was checked with the differences claimed in the petition on these bills. Subsequently the amounts were deducted from the United States Railroad Administration accounts, but it does not appear that this deduction affected plaintiff'. This leaves three items of the claim for consideration. As to one of these, G-480, being a claim for $1,692.96 on account of a deduction in this sum from a bill *87submitted by plaintiff to the Auditor for the War Department, the plaintiff says that this settlement by the auditor and the consequent deduction was made May 10, 1920, “ when the question of the right of the Government to the free baggage car tariffs was very much in controversy.” The Government insists that the, plaintiff accepted the auditor’s allowance without protest against the deduction or otherwise making objection to it and without availing itself of the right to have the auditor’s settlement revised by the Comptroller of the Treasury, and that it should not now be heard to complain of the deduction. The bill in question arose October 26, 1916. The auditor’s settlement was made in May, 1920, and this suit was brought August 22, 1922.

The Dockery Act, 28 Stat. 206, formulates the Government’s accounting system. Among other things, it provides in section 8 that balances which may from time to time be certified by the'auditors “shall he final and conclusive upon the executive branch of the Government.” Provision is made for a revision by the Comptroller of the Treasury of an auditor’s settlement upon the application of “ any person whose accounts may have been settled ” within a year thereafter. No revision was had or applied for by the plaintiff. The act further provides that any person accepting payment under a settlement by an auditor “ shall be thereby precluded from obtaining a revision of such settlement as to any items upon which payment is accepted.” The clearly defined policy of the act is to secure finality and conclusiveness in settlements of the designated officers. It will not allow a creditor to accept the auditor’s allowance and apply to the comptroller for further payment.

The auditor’s action is final and conclusive upon the executive branch. The policy of the statute should not be ignored and should have some consideration when a party whose accounts have been settled by the proper auditor appeals to the court for an additional amount to that received upon the auditor’s certificate. The plaintiff’s argument that when the deduction was made from its bill by the auditor the question of the right- to make it “ was very much in con*88troversy ” does not show sufficient reason for accepting the auditor’s conclusion without any attempt to secure its revision by the comptroller or for its failure to signify any timely objection to this conclusion. As to these controverted items the plaintiff’s account may be treated as unliquidated and its acceptance of the undisputed items a settlement of the entire claim. *See Chicago, Milwaukee & St. Paul Ry. Co.*v. *Clark,*178 U. S. 353, 367; *Savage case,*92 U. S. 382, 388; *Pacific Railroad Co. case,*158 U. S. 118, 122.

This court in the case of *Texas d¡ Pacific By. Co.,*57 C. Cls. 284, 293, commented on the effect of the receipt of an allowance by an auditor and failure to protest against the disallowance of part of it, saying “ there must be a time when public accounts are to be deemed settled; a time, without reference to statutes of limitation, when it may be assumed that settlements made are final, and it must be as early as circumstances will permit. That ordinarily will occur when, after an auditor’s settlement, the allowance made is paid and payment accepted without any action or circumstances repudiating the idea of an acceptance of the settlement as final.” The question was again presented in *Atchison, Topeka da Santa Fe Ry. Co. case,*58 C. Cls. 583, and it was concluded that acceptance of payment under the auditor’s allowance of part of the asserted claim without protest or some other action clearly indicating nonacquiescence in such settlement would bar further prosecution of the claim. While these and other cases recognize the right of parties to apply to the courts in proper cases, it is not unreasonable to require them to make known to the auditor or comptroller in some appropriate way the purpose, if there be any, to further prosecute their demands, notwithstanding the action of these officials. In such case the latter acting for the Government could either withhold any voucher or authorize payment of the part allowed and have some notice of the proposed further prosecution of the claim. As already stated, there must be an end of accounting. *Texas & Pacific Ry. Co. case, supra.*The failure to indicate that the *89acceptance of the auditor’s allowance was under protest and with a purpose to proceed further bars recovery in this suit. The claim was settled.

The two. remaining items are bills No. 3055 and No. 4732 for differences claimed in the sums of $2,604.34 and $566.80, respectively. The service upon which they are based was rendered in May, 1917. These items were included in a former petition' by the same plaintiff, No. 34697, filed September 13, 1920. In that suit judgment was rendered in favor of plaintiff February 27, 1922, in a large amount, which has been paid. But plaintiff contends that the items now in question were not included in the judgment. The cases relied on to sustain this contention, *Spicer case,*5 C. Cls. 34, and *Book case,*31 C. Cls. 272, are not applicable. These items were “ involved in the controversy.” They were stated in the petition. The question is set at rest by section 178, Judicial Code. See *Vaughn*case, 34 C. Cls. 342; *Frerich's*case, 124 U. S. 315, 320.

The petition should be dismissed. And it is sc ordered.

Ghaham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Booth, Judge, concur.