#### JAMES A. BAKER, RECEIVER OF THE INTERNATIONAL & GREAT NORTHERN RAILWAY CO., v. THE UNITED STATES1

[No. 34463]

*On the Proofs*

*Railroad rates; land-grant deductions by claimant; acceptance of balance without protest.*— Where plaintiff has rendered its bills with land-grant deductions, and has received payment of the balance without protest or objection being made either when the bills were rendered or when they were paid, it can not recover the amounts so deducted.

*17*Same; transportation■ requests; description.*— Where the descriptions of the travelers on the backs of transportation requests show that the persons for whom the transportation is requested do not come within the purview of the land grant acts, and the carrier makes out its bills with land-grant deduction without examination of such descriptions, and its bills are paid as presented and payment is received without protest, it can not recover.

*The Reporter's*statement of the case:

*Mr. F. Garter Pope*for the plaintiff.

*Mr. Louis R. M elding er,*with whom was *Mr. Assistant Attorney General Herman J. Galloioay,*for the defendant. *Mr. Perry W. Howard*was on the briefs.

Decided March 29, 1926.

Motion for new trial overruled July 1, 1926.

The court made special findings of fact, as follows:

I. During the period of the different transactions set out in these findings of fact James A. Baker was the receiver of the International and Great Northern Bail way Company, duly appointed by the District Court for the Southern District of Texas, Houston Division, in the suit of *The Central Trust Company of New York*v. *International and Great Northern Railway Company, et al.,*and as such receiver operated the lines of said railroad in transporting freight and passengers to and from San Antonio, Tex., and other points. Since the transportation of the passengers, for which claim is made in this suit, was rendered the said company has been reorganized, and on December 1, 1922, took over the management thereof and now operates said railroad. James A. Baker still continues to act as such receiver. The name of the present corporation, organized under the laws of the State of Texas, is the International-Great Northern Bailroad Company.

II. The original petition in this case was. filed on March 10, 1920, claiming the refund of the. land-grant deductions in the sum of $22,155.53. For the transportation furnished, the plaintiff rendered all of its bills with land-grant deductions, some to the disbursing officer of the Army and some *18to the accounting officers of the Treasury. Part of the bills so rendered were presented to said officers without protest and part had a protest stamped across the face of the bills, and no protest or objection was made when the several bills were paid. On May 21, 1920, the plaintiff filed another suit, No. 84618, claiming the refund of all the land-grant deductions which he had made under protest and had claimed in his original petition filed March 10, 1920, in this case. On June 14, 1920, the plaintiff filed request for findings of fact in the second case, claiming $6,483.21 on said protested bills. On June 23, 1920, a motion was filed by plaintiff for leave to amend the original petition by striking out all the bills which had been protested and reducing the amount from $22,155.53 to $15,672.22. This motion to amend was overruled, but with leave, however, to file an amended petition. Judgment was rendered by the court in the second suit, No. 34613, on June 28, 1920, for $6,483.21, the amount of the protested bills that were included in the original petition. On October 15, 1923, a second amended petition was filed in the present suit from which were eliminated all of the said protested bills for which the said judgment had been rendered.

III. The International and Great Northern Railway was not a land-aided railroad. The plaintiff and his connecting lines equalized the interstate fares to which they were parties with the lowest net fares applying by way of lines aided in their construction by grants of land from the United States.

IV. During the years 1913, 1914, and 1915, the plaintiff, at the request of proper officers of the War Department, furnished transportation for applicants for enlistment in the Army, discharged military prisoners, discharged and retired soldiers, and soldiers on furlough over routes subject to the equalization agreements with the Quartermaster General of the Army referred" to in Finding III.

V. The said services were performed by plaintiff and his connecting carriers upon requests made on authorized War Department forms. These forms contained on their face a request by the Quartermaster General for transportation for blank person and others from blank place *19to blank, with appropriate spaces for the class of ticket and the lands of berth or seat, as the case might be, and a space for the signature and title of the countersigning officer. The face also contained a blank certificate of the receipt of the transportation and accommodations furnished, with a space for the signature and official title of the traveler, and below that a space for the name of the officer to whom the bill should be rendered. At the bottom of the face of the request were the words in black-face capitals: NOTE: FOE-LOW STRICTLY THE INSTRUCTIONS ON REVERSE HEREOF. The instructions on the back contained, among other things in paragraph 4, spaces for the company and regiment of the traveler or travelers, for the authority on which the request was issued, and for the “nature of the journey.” The notations on the backs of the requests disclosed that land-grant-deductions amounting to $11,959.93 were made on account of discharged and retired soldiers, applicants for enlistment, discharged military prisoners, and soldiers on furlough. The notations also showed that $1,145.15 of land-grant deductions were on account of persons in the military service and $1,297.47 were land-grant deductions for persons whose status has not been shown by said notation. Of the $11,959.93 the sum of $2,263.55 is barred by limitations and the sum of $9,696.38 is now claimed by plaintiff; The only evidence in this case as to the status of the person transported was obtained from the notations on the requests. These remained in plaintiff’s possession until his bills were rendered.

The court decided that plaintiff was not entitled to recover.

1

 writ of certiorari denied.

Campbell, *Chief Justice,*

delivered the opinion of the court:

The only question for decision is whether the plaintiff can recover the amounts of certain deductions from its bills on account of land grant, where it appears that plaintiff presented its bills with land-grant deductions therefrom and they were paid as rendered, there being no protest or objection made by plaintiff when its bills were rendered or when it accepted payments of them as rendered. The original petition in this case sought recovery for land-grant *20deductions from bills that plaintiff had rendered, and in all of them the land-grant deductions were made, but on part of these bills there were stamped protests against liability for land grant. On the others there was no protest on the bills nor protest, or objection when the plaintiff was paid and accepted payment of them as presented. The bills mentioned as having protests stamped upon them were by plaintiff made the subject of a later suit, No. 34613, in this court, and for these protested bills plaintiff was awarded judgment in suit No. 34613 on June 28, 1920. See 55 C. Cls. 537. These items for which judgment was recovered are eliminated from the amended petition in the instant case. But having rendered its bills with land-grant deductions and been paid the amounts of them without protest or objection made either when the bills were presented or when they were paid, the plaintiff can not recover the amounts of these unprotested bills. See *Southern Pacific Co. case,*268 U. S. 263, 268, and cases there cited.

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

GRAham, *Judge;*Hat, *Judge;*DowNev, *Judge;*and Booth, Judge, concur.