#### CHICAGO, BURLINGTON & QUINCY RAILROAD CO. v. THE UNITED STATES

[No. C-1060.

Decided December 6, 1926]

*On the Proofs*

*Land-grant deductions; act of October 6, 1911; equalization; suit by intermediate carrier.*— Where the initial carrier waives its right to sue for additional compensation under the act of October 6, 1917, on business equalized with a route by way of the lines organized under the act of July 28, 1866, an intermediate carrier may sue for and recover its own proportion of said additional compensation.

*The Reporter's*statement of the case:

*Mr. Lawrence H. Calce*for the plaintiff. *Britton <& Gray*were on the briefs.

*Mr. Joseph E.*Sheppard, with whom was *Mr. Asdsta/nt Attorney General Reiman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is, and was during the various transactions hereinafter set out in these findings of fact, a common carrier of passengers and freight. The Pennsylvania Company was the initial and contracting carrier and the plaintiff one of the intermediate carriers.

II. At the times of the transportation hereinafter described the plaintiff and its connecting lines were parties to land-grant “equalization agreements with the United States,” whereby, on transportation of persons for whom the United States was by law entitled to reduced fares, the carriers agreed “ to accept lowest net fare * * * lawfully available, as derived through deductions account land-grant distance via a usually traveled route for military traffic, from a lawful fare filed with the Interstate Commerce Commission, as applying from point of origin to destination via such route at time of movement.”

III. At various times in the year 1917, between April 6, 1917, and October 6, 1917, the Pennsylvania Company, the plaintiff, and its connections transported troops of the United *658States from Columbus, Ohio, to Fort Bliss, Texas, and Douglas, Arizona.

IY. Waivers have been filed herein by participating carriers, to any rights they may have in this suit, by duly acknowledged instruments signed by general officers of the Pennsylvania Railroad Company; the Chicago, Rock Island & Gulf Railway Company; the Chicago, Rock Island & Pacific Railway Company; and the El Paso & Southwestern Railroad Company.

Y. For the services so performed, the Pennsylvania Company, as the initial carrier, rendered its two bills to the proper disbursing officer and the same were paid by him to the said initial carrier with 100 per cent land-grant deduction in the sums of $1,393.56 and $7,160.36, respectively, making a total amount paid $8,553.92, which was the sum properly due and payable when 100 per cent land-grant deduction was applied. If the two bills had been paid to the initial carrier on the basis of 50 per cent land-grant deduction, the amounts would have been $1,488.06 and $7,566.28, respectively, or a total of $9,054.34, or an increase of $500.42, distributable among the several interested carriers.

YI. The basis on which the initial carrier settled with its connecting lines is not shown by the evidence. The plaintiff was paid by the initial carrier the sum of $208.74 on one bill and the sum of $858.28 on the other, or a total of $1,067.02. On the basis of 50 per cent land-grant deduction instead of the 100 per cent actually used in making payment to the initial carrier, the difference, so far as plaintiff is concerned, would be $112.58.

The court decided that plaintiff was entitled to recover $112.58.

Campbell, *Chief Justice,*

delivered the opinion of the court :

The first question for determination is whether plaintiff can maintain the action. It was an intermediate carrier, and the railroad company, upon whose line the shipments originated — the initial carrier — has been paid and has in turn paid the connecting or intermediate carriers. The *659initial carrier’s bill was subjected to land-grant deduction on the basis of 100 per cent land grant so far as plaintiff’s mileage is concerned, the service having been rendered prior to the act of October 6, 1917, 40 Stat. 361, but during the war emergency.

The plaintiff received a proportion of the initial carrier’s entire bill and the record does not disclose the basis of settlement between the initial and its connecting carriers. We must therefore assume for the purposes of this case that the plaintiff was paid and accepted all that was due it on the movements of soldiers mentioned in this case at the time of settlement unless the act of October 6, enacted subsequent to the service in question, gives plaintiff the right to sue for an additional sum. This act provides that land-grant railroads organized under the act of July 28, 1866, shall receive the same compensation for transportation during the war emergency as was payable to land-grant roads organized under the acts of March 3,1863, and July 27,1866. In other words, the 100 per cent land-grant roads were put on the same plane as the 50 per cent land-grant roads during the period of the war.

It has been held by this court that a railroad company— in that case the initial carrier — could sue for and recover the difference between the 100 per cent deduction it had been subjected to and the 50 per cent deduction it was liable for under the act of October 6, notwithstanding the fact that it had been paid the amount of its bill based on the larger deduction. See *Baker, Receiver of International & Great Northern Ry. Co., case,*56 C. Cls. 336; *St. Louis, Brownsville & Mexico Ry. Co. case,*58 C. Cls. 619. We can not see any substantial reason why the mere fact that the plaintiff here is a connecting or intermediate carrier should be sufficient to deprive it of the compensation the statute authorizes, and since the initial carrier declines to assert the right for it, we think the plaintiff may properly sue to recover the additional compensation authorized by the act.

The next question is what should be the basis of the recovery. The plaintiff, as already said, has been paid and *660has accepted its proportion of the initial carrier’s entire bill. We can not say in such case that the amount so paid and accepted is more or less than was properly payable by the initial carrier. We can not be expected to settle the differences, if any, between these parties. The best we can do is to accept the payment to plaintiff as conclusive and determine how much more it should receive if the bills be treated as subject only to a 50 per cent land-grant deduction.

We will accordingly give judgment on this basis. And it is so ordered.

Moss, *Judge;*Graham, *Judge;*Hat, *Judge;*and Booth, Judge, concur.