#### NORFOLK SOUTHERN RAILROAD COMPANY v. THE UNITED STATES

[No. B-190.

Decided March 31, 1924]

*On the Proofs*

*Railroad rates; transportation of National Guard.*— The purpose of Supplement No. 1, dated June 2, 1917, to the Interterritoriai Agreement effective January 1, 1917, was to provide for the payment of all unsettled accounts for the transportation of the National Guard and others named therein upon the same basis as officers and enlisted men of the Regular Army and Navy.

*Same; party fares.-*— The Southeastern Joint Party Tariff K 2, • I. O. O. F-2660 authorized the construction of a through party fare from Morehead City, N. C., to Vicksburg, Miss., by adding the party fare from Morehead City to the party fare from Goldsboro, N. C., to Vicksburg.

*Same; refund, to disbursing officer; protest.*— Army disbursing officers have no authority to order the refund of fares received by a railroad company, but if the company refunds such fares, although under protest, it can not recover the same by an action in the Court of Claims.

*The Reporter’s*statement of the case:

*Mr. C. M. Bain*for the plaintiff.

*Mr. Lisle A.*Smith, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

*518The 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 Virginia. At the times of the different .transactions hereinafter set out in these findings of fact it operated, and still operates, its lines of railroad, extending from the, city of Norfolk, Va., to the city of Charlotte, N. C., together with various branch lines connecting with its main line and a line from Morehead City, N. C., to the town of Goldsboro, N. C., doing business as a common carrier of passengers and freight for hire and reward, under tariffs issued by it and its connecting lines, duly published and filed with the Interstate Commerce Commission according to law.

II. Before the services hereinafter described were rendered, the railroad carriers of the United States generally, including the plaintiff, entered into agreements with the United States regulating fares and allowances for the transportation of United States troops and property, said agreements being variously entitled “ Interterritorial Military Agreement,” “ Interterritorial Military Arrangement,” “ Western Military Agreement,” etc. Said agreements were executed on behalf of the carriers by their duly authorized agents and on behalf of the United States by the Quartermaster General of the Army, the Chief of Bureau of Navigation of the Navy, and the Quartermaster of United States Marine Corps. The agreement effective July 1, 1916, entitled “ Interterritorial Military Arrangement ” was in effect during the periods hereinafter referred to and at the dates of the transportation described.

The said Military Arrangement effective July 1, 1916, on page six, contained the following stipulation:

“ 1. Party fares may be used as factors in constructing through net fares to and from Central, Trunk Line, Southeastern, and New England territories, in the understanding that the basing points shall be Chicago, St. Louis, Memphis, Vicksburg, and New Orleans only. Neither two or more party fares, nor a party fare and an individual fare, east or west of the gateways named, may be combined in establishing a basing fare to or from the basing point. Party *519fares used to and from basing points named must be authorized as one through party fare to or from such basing points, as the case may be. A party fare or an individual fare, published as one through fare to or from the basing points named, may, however, be combined with authorized individual fares east or west of such points in making through net fares between the eastern and western territories described, except that where through fares of like class are published they shall be used in all cases in establishing through net fares. All fares used in establishing net fares must be lawfully on file with Interstate Commerce Commission.”

III. The Southeastern Joint Party Tariff, K. 2, I. C. C., F-2660, in which plaintiff was a participating carrier, in force at the time the service for which compensation is claimed was rendered, gave a party fare from Goldsboro, N. C., to Vicksburg, Miss. It also contained the following-stipulation, on page 31:

“ 33. Party fares to destinations or from points of origin not shown in this tariff will be made by adding the party fares shown in this tariff to the party fares shown in other tariffs as lawfully on file with the Interstate Commerce Commission, provided that if the party fare so made exceeds the party fare to or from a point beyond on the same through line as shown in this tariff the latter fare will apply. Party fares so made will apply via all routes authorized under this tariff to or from contiguous points of origin or of destination.”

The plaintiff’s Party Tariff P-184, I. C. C. P-122, gave a party fare from Morehead City, N. C., where the camp of instruction, known as Camp Glenn, was situated, to Goldsboro, N. C.

IV. During the months of September and October, 1916, the plaintiff and its connecting carriers transported on government transportation requests issued by proper authority 3,206 enlisted men and officers of the United States Army from Camp Glenn, N. C., to Fort Bliss, Tex.

V. For the transportation so furnished the plaintiff, as the initial carrier, rendered its bills to the proper disbursing quartermaster of the United States Army at the rate of $43.71 for each person, amounting in the 'aggregate to the sum of $140,134.26, which was paid in full by said disbursing officer; Thereafter the said disbursing officer demanded *520the repayment by plaintiff of $2,853.34 upon the ground that the plaintiff had been overpaid that amount by reason of its charging an erroneous per capita fare of $43.71 instead of a correct per capita fare of $42.82. The plaintiff refused to refund said amount, and on December 15, 1917, the disbursing officer wrote to plaintiff that unless refund was made in ten days its passenger and freight accounts would be held up 'and said amount deducted. Plaintiff still refused to refund said amount, and on January 16, 1918, the said disbursing officer advised plaintiff that on that date all accounts of plaintiff would be held up until the said amount was p'aid.

Upon the receipt of said letter of January 16, 1918, plaintiff repaid said sum of $2,853.34 to the said disbursing officer.

VI. The party fare given in plaintiff’s Party Tariff P-184 I. C. C. P-122 from Morehead City, N. C., to Goldsboro, N. C., at the time of said transportation, was $1.88. The party fare given in the Southeastern Joint Party Tariff K2, I. C. C. F-2660, from Goldsboro, N. C., to Yicksburg, Miss., at the time of said transportation was $18.25. The through party fare under the two tariffs from Morehead City to Vicksburg was $20.13. The individual fare from Vicksburg to Fort Bliss, Tex., was $22.52, and the per capita fare from Morehead City to Fort Bliss, with combination of party and individual fares on Vicksburg, with proper land-grant and maximum 5 per cent deductions, w'as $42.63.

Booth, Judge,

delivered the opinion of the court.

The plaintiff company in September and October, 1916, upon lawful requests therefor, transported 3,206 enlisted men and officers of the Army from Camp Glenn, N. C., to Fort Bliss, Tex. The plaintiff on its own initiative presented to the disbursing quartermaster of the Army its bill for this transportation service. In this bill as thus presented the plaintiff asked pay at the rate of $43.71 for each individual carried, and the disbursing officer paid the same in full, viz: $140,134.26. Some time later the disbursing officer contended that he had made an error in allowing and paying this amount, that, as m'atter of fact the plaintiff was only entitled to be paid $42.82 per capita for the service *521rendered, and demanded an immediate refund of $2,853.34, the amount of the alleged overpayment. The plaintiff declined to concede the error 'and refused repayment, whereupon, on December 15, 1917, the disbursing officer notified the plaintiff by letter that a refund must be made in 10 days or the passenger and freight accounts of the company would be held up and said amount deducted therefrom. Plaintiff, notwithstanding this warning, still refused to refund the $2,853.34. Finally, on January 16, 1918, the disbursing officer notified the plaintiff that on- that day all the accounts of the plaintiff would be held up until this amount was paid. Subsequent to the receipt of this last notice plaintiff refunded, under protest, the sum of $2,853.34 to the disbursing officer. The plaintiff now sues, not only for the said sum repaid 'as aforesaid, but for the additional sum of $3,270.12 which it asserts is due because of its own mistake in originally presenting its bill at the rate of $43.71 per capita, instead of $44.73 per capita, the lawful rate it was entitled to charge and collect.

The plaintiff insists that it has earned and is entitled to collect for each soldier transported as above the sum of $44.73. This rate is arrived at by recourse to the lowest individual fare, i. e., through fare open to the public in accord with the tariffs on file with the Interstate Commerce Commission, from Camp Glenn, N. C., to Fort Bliss, Tex., as modified by the Interterritorial Military Arrangment dated December 28, 1916, effective January 1, 1917.

It will be observed that all the service furnished, for which claim is made, was accomplished in September and October, 1916, and manifestly an agreement effective January 1, 1917, could not apply thereto, unless by its own terms, or some other agreement, it is made to operate retroactively. The plaintiff, therefore, contends that Supplement No. 1 dated June 2, 1917, to the agreement effective January 1, 1917, was intended for this precise purpose, and does by its own express terms reach back and cover the proper rate per capita applicable to this case. Unfortunately for the plaintiff the history of the origin and purpose of Supplement No. 1 absolutely negatives its contention. The face of Supplement No. 1 discloses its purpose.

*522A decision of this court in the case of *Union Pacific R. R.*v. *United*States, 52 C. Cls., 226; 249 U. S. 354, had precluded the classification of the National Guard organizations (State Militia), as well as others mentioned in the supplement, as troops of the United States, and hence Government transportation of the same could not be exacted on the basis of land grant carriage. When this condition of affairs was put before the accredited representatives of the respective railroads affected by the Interterritorial Military Arrangement of January 1, 1917, the Supplement No. 1 was made and entered into to put this class of persons, temporarily closely identified and connected with the Army and Navy, upon the same basis as the officers and enlisted men of the [Regular Army and Navy. It had no general application and was not intended to affect any other class of persons save those specifically mentioned. Inasmuch as many railroads had transported this particular class of individuals, and had not at the time of its going into effect received its pay therefor, provision was made for payment of all *unsettled*accounts on the basis of the agreement of January 1, 1917, and to this extent, and to this extent only, it operated retroactively. No more convincing proof could be adduced to sustain this construction than the patent fact that no other amendment of the agreement was either sought or suggested. The railroads affected were content with the arrangement, an arrangement which operated to their advantage during the war.

Keeping in mind the date of Supplement No. 1, it will be noticed that it was executed June 2, 1917, coincident with the proclamation of the President of the United States calling out the National Guard for mobilization for the war with Germany, to be effective from June 18; 1916. Therefore, it was apparent to both the railroads and the Government that this vast increase in the transportation of men to the training camps and places of rendezvous, to ultimately become soldiers of the United States, should be provided for. We have said it was to' the temporary advantage of the railroads, and so it was, for the abnormal increase in number more than supplied the loss in rate of fare. If anything more need be said 'in the process of demonstration, it is sufficient to observe that the supplemental agreement, after *523having served its temporary purpose, was duly abrogated by the contracting parties. The transportation furnished in this instance was not of this class. On the contrary, it was furnished for officers and enlisted men of the Regular Army on their way to the Mexican border, and therefore furnished under the Interterritorial Military Arrangement effective July 1, 1916. Supplement No. 1 was totally unnecessary if intended to provide for the transportation of United States troops and property, as the agreement of 1916 then in force provided exclusively for the transportation of such troops and property.

The defendant in demanding the refund of $2,853.34 finally paid by the plaintiff on January 16, 1918, predicated its demand upon the terms of the Interterritorial Military Arrangement of July 1, 1916. In other words, the defendant ascertained the existence of a party fare duly published from Camp Glenn, N. C., to Goldsboro, N. C., and from Goldsboro to Vicksburg, Miss. These two party fares were added together, and with the additional individual fare from Vicksburg to Fort Bliss, Tex. (the latter not here involved in any way) totaled $42.65. The correctness of this fare, if legally allowable, is conceded. It seems quite clear that; by the express provisions of the foregoing agreement there was available to the defendant the undoubted right to demand the service rendered at the rate of fare it was willing to and finally did pay. The defendant did not, as a matter of fact, combine two party fares. What it did was to pay two party fares, one from Camp Glenn to Goldsboro, and the other from Goldsboro to Vicksburg, the basing point. If the party fares between the above-mentioned points were not authorized as *one*party fare to or from such basing point, i. e., Vicksburg, Miss., obviously only an individual through rate was available to the defendant, but the Southeastern Joint Party Tariff K 2, I. C. C., F-2660, did authorize this method of ascertaining Government rates, and the plaintiff was a participating carrier in the same, and as such was obligated By the provisions of the Southeastern Joint Party Tariff. It seems to us that the defendant was clearly right in making the deduction. The plaintiff was apparently misled in the belief that Supplement No. 1 applied to Regular *524Army officers and enlisted men, and thereby applied to the transportation service here involved.

It only remains to say that under the recent decisions oí this court in the cases of *Western Pacific*Ry., ante, p. 67; *Southern Pacific*Co., ante., p. 36; and *Northern Pacific*Ry., ante, p. 122, the amount involved in the sum refunded could not be recovered in any event. The refund, while made under written orders calculated to produce some degree of coercion and fear, was, nevertheless, made under orders of an officer of the Government who was without authority to issue such peremptory orders and commands. The officer who made the threat had a very simple duty under the law to perform. He must either pay the bill as rendered, or not at all. He had no authority to order a refund, and the plaintiff had open to it a definitely marked out course to pursue in the accounting department of the Government, irrespective of the verbal or written offerings of the disbursing officer. We need not suggest again the course that should have been taken. It was sufficiently emphasized in the cases referred to.

In view of what has been said we- think it unnecessary to discuss the claim for an alleged mistake in rendering the bills for the service rendered. If we are correct in our view of the case, this item of the claim follows the result of our judgment.

The petition will be dismissed. It is so ordered.

Graiiam, *Judge;*Hay, *Judge;*DowNey, *Judge,*and Campbell, *Chief*Justice, concur.