#### NORTHERN PACIFIC RAILWAY COMPANY v. THE UNITED STATES

[No. D-126.

Decided February 23, 1926]

*On the Proofs*

*RaüroaH rates; supplemental hill; protest.*— Tbe rendering of a supplemental bill after payment and acceptance of payment of a bill as rendered does not take tbe place of a protest or objection, which should be made at the time of pajunent.

*The Reporter's*statement of the case:

*Mr. Lawrence II. Cake*for the plaintiff. *Britton <& Gray*were on the brief.

*Mr. Lisle A. Smith,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

*734The court made special findings of fact, as follows:

I. The plaintiff is a corporation and a common carrier by railroad of freight and passengers.

II. Under the acts of Congress granting lands in aid of railroads and the acts of Congress making appropriations for the support of the Army, the land-grant railroads have been required to transport troops of the United States at fares less than those charged other persons for similar transportation.

III. At the time of the service hereinafter mentioned the plaintiff and its connections had entered into certain “ equalization ” agreements to accept the lowest net fares as computed via competing land-grant routes. Circular 15, Quartermaster General, May 18, 1922.

IY. During the years 1921 and 1922, commencing in June, 1921, the plaintiff performed certain service for the United States in the transportation of members of the National Guard to and from camps of instruction authorized by the acts of Congress making appropriations for the Army and by the national defense act of June 3, 1916, as amended.

V. The said members of the National Guard had subscribed to the dual oath or enlistment contract provided by the national defense act of June 3, 1916, as amended, and they and their organizations had been recognized by the Secretary of War as having fully complied with the provisions of the said act as to organization, qualification, and training.

YI. At the time the transportation service was rendered the said members of the National Guard had not been called as such into the service of the United States for the purposes mentioned in Article I, section 8, paragraph 15, of the Federal Constitution, namely, to execute the laws of the Union, suppress insurrections, or repel invasions, and they had not been drafted into the military service of the United States as authorized by section 111 of the national defence act of June 3, 1916. The organization in which they were enlisted had been ordered to encampment for training purposes in accordance with the provisions of sections 92, 94, and 97 of the said act.

*735VII. For a part of the said transportation the plaintiff stated its bills at full tariff fares and payment was made to the plaintiff accordingly by the disbursing officer of the Army. Later set-offs were made at net land-grant fares and the overpayments so calculated were deducted, in some instances by the disbursing officer and in other instances by the accounting officer, from other amounts due the plaintiff. The total amount of the land-grant deductions so made on account of the said bills was $20,175.17.

VIII. For' another part of the said transportation the plaintiff rendered its bills at net land-grant fares, stating that it was done under protest, and payments were made accordingly, in some instances by the disbursing officer and in other instances through settlement by the accounting officer. On the said bills the land-grant deductions amounted to $15,193.12.

IX. For still another part of the said transportation the plaintiff stated its bill No. P-3337 at net fares without any protest being indicated, and payment was made accordingly by the disbursing officer of the Army on' December 15, 1922. The plaintiff rendered a supplemental bill for the amount of the land-grant deductions, $1,601.18, which was transmitted to the General Accounting Office January 10, 1923, and was disallowed by the Comptroller General March 15, 1923.

X. For service furnished in October, 1922, on transportation requests 3745553, 3748933, and 3748938, the plaintiff billed at net fares and payment was made accordingly by the disbursing officer of the Army on April 2, 1923. A supplemental bill was rendered by the plaintiff for $65.49 additional, upon what date does not appear, on the basis of full tariff fares, and settlement thereof was made by^ the Comptroller General February 13, 1924, allowing $1.22 and disallowing $64.27. The land-grant deductions amounted to $64.27.

The court decided that plaintiff was entitled to recover, in part.

*736Campbell, *Chief*Justice,

delivered the opinion of the court:

There is a stipulation of facts in this case which shows that the railroad company transported members of the National Guard to and from camps of instruction. They had not at that time been called into service of the United States for any of the purposes mentioned in Article 1, section 8, paragraph 15 of the Constitution of the United States, nor had they been drafted into the military service of the United States under section 111 of the national- defense act of June 3, 1916. In these circumstances they were not troops of the United States within the meaning of the land-grant acts. See *Oregon-Washington Railroad and Navigation Co.*case, 60 C. Cls. 458.

1. In a large part of the claim herein the plaintiff stated its bills at full tariff fares, which were paid by the disbursing officer, and later deductions were made from other bills of the railroad company on account of land grant. Since the Government was not entitled to land-grant fares, these deductions were erroneous and plaintiff is entitled to recover same (Finding YII).

2. Others of the bills shown in Finding VIII were rendered at net land-grant fares, with statements to the effect that the net fares were accepted under protest, because the persons transported were not subject to the land-grant statutes. This class of claims come within the rule of the *St.*Louis, *Brownsville & Mexico Railway Company case,*268 U. S. 169. Plaintiff is, therefore, entitled to recover the difference between what it received and the commercial fares shown in Finding VIII.

3. Others of the bills were presented at net fares. No protest was indorsed upon the bills and no protest was made at the time payment was made. Thereafter plaintiff rendered supplemental bills for the amount of land-grant deductions, which, being transmitted to the General Accounting Office, were disallowed by the Comptroller General. In one instance involving a small claim the Comptroller General acted upon the supplemental bill and allowed a small part of it. These bills having been presented at net fares and payment received without any objection or *737protest come within the ruling of the Supreme Court in the *Southern Pacific Company*case, 268 U. S. 268, where it is said: “ It is clear that as to all the bills which were presented at land-grant rates prior to January 1, 1914, and paid and accepted without protest or other objection, the conduct of the claimant was such as to lead the Government to believe that the land-grant rates were accepted in full satisfaction of the original claims and established an acquiescence on the part of the claimant that operated as a discharge of the claims for the full passenger rates.” We do not think that the circumstance of the rendering of supplemental bills to the disbursing officer or accounting officer after payment and acceptance of payment of bills as rendered can affect the situation or take the place of protest or objection which should be made at the time of payment. See authorities *supra.*

Geaham, *Judge;*Hat, *Judge;*Downey, *Judge;*and Booth, Judge, concur.