#### SOUTHERN PACIFIC COMPANY v. THE UNITED STATES

[No. D-354.

Decided April 5, 1926]

*On the Proofs*

*Railroad rates; military arrangement; transportation of National Guard.*— The provision in carriers’ Joint Military Arrangement No. 1 for deduction of 3 per cent on transportation of officers and others of the United States Army, Navy, and Marine Corps, does not extend to the National Guard.

*The Reporter’s*statement of the case:

*Mr. William, R. Harr*for the plaintiff. *Mr. Charles H. Bates*was on the brief.

*Mr. Louis R.*MehZinger, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Mr. Perry W. How'wd*was on the brief.

*58The 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 acts of Congress granting lands in aid of railroads and acts of Congress appropriating money for the War Department, the land-grant railroads, including a portion of plaintiff’s lines, 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 in connection with transportation of troops of the United States the lowest net fares as computed via land-grant routes. Circular 15, Quartermaster General, May 18, *1922.*The plaintiff and its connections, had also agreed to accept a further deduction of three percent on transportation exclusively of “ commissioned officers, warrant officers, field clerks, nurses, and enlisted men. of the United States Army, and commissioned officers, warrant officers, and enlisted men of the United States Navy- and United States Marine Corps.” This agreement was-, known as “ Joint Military Arrangement No. 1” and was-effective on and after January 1, 1921.

IY. During the years 1920, 1921, 1922, and 1923, more-particularly hereinafter set forth, the plaintiff, at the request of the War Department, 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 sup - - port of the Army and by the national defense act of June-3, 1916, 39 Stat. 166, as amended by the act of June 4, 1920, 41 Stat. 180.

Y. The said members of the National Guard had subscribed to the dual oath or enlistment contract provided by the said national defense act, and they and their organizations had been recognized by the Secretary of War as having • fully complied with the provisions of 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' *59as 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 defense act of June 3, 1916. The organizations 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 national defense act.

VII. For that portion of the said service rendered prior to May 31, 1921, the plaintiff presented bills to the disbursing officer of the Army stated at full tariff fares without deduction of any sort, and payment was made by said officer as per bill rendered. On February 20, 1923, in a settlement made with the plaintiff on other transactions the-accounting officer withheld the sum of $75.49, claiming that the plaintiff had been overpaid to that extent on the bills, paid as aforesaid, being the amount of land-grant deduction for troops of the United States. The accounting officer also-withheld in said settlement an additional amount of 36' cents, claiming a like overpayment to that extent on account of an allowance due the Government, in addition to land-grant deduction, of 3 per cent under the alleged authority of Joint Military Arrangement No. 1.

VIII. The remainder of the said service was performed beginning June 3, 1921, and ending on or about August 26, 1923. The plaintiff rendered its bills therefor and was paid as follows:

(1) Certain of said bills were presented to the defendant at full tariff fares without deduction, and payment was so made by the disbursing officer of the Army. Thereafter the accounting officer, claiming an overpayment had been made aggregating $13,908.74, which was the land-grant deduction, proper to troops of the United States, withheld that amount from other sums due the plaintiff. The accounting officer also withheld therefrom $10.90, claiming a like overpayment on account of the 3 per cent allowance under the military-arrangement.

*60(2) Other bills were presented to the defendant at net fares — i. e., with land-grant deductions and the 3 per cent allowance — with a statement therewith that such deductions or allowances were made under protest, and payment was made by the disbursing officer of the Army accordingly. The difference therein amounted to $36,794.83 land-grant deduction and $61.66 for the 3 per cent allowance.

(3) Other bills were presented to the defendant at full tariff fares without deductions, and were so paid by the disbursing officer. Thereafter, the disbursing officer, claiming that he had overpaid the plaintiff thereon to the extent of land-grant deductions applicable to troops of the United States, withheld therefor $142.11 from payments to plaintiff on bills for other services.

(4) In the remaining instance the plaintiff submitted its bill to the defendant stated at full tariff fares without deductions, and in the settlement thereof the accounting officer withheld $1,356.87 for land-grant deduction on the ground that the men transported were troops of the United States within the meaning of the land-grant acts, and the further sum of $98.40 claimed by him as an allowance of 3 per cent under the said military arrangement.

IX. The several amounts so deducted from the plaintiff’s bills, or withheld by the defendant remain unpaid.

The court decided that plaintiff was ■ entitled to recover $52,449.36.

Campbell, *Chief*Justice,

delivered the opinion of the court :

The greater part of the claim involved in this suit is for the transportation of members of the National Guard, the question being whether or not they were troops of the United States. This question has been decided in favor of the plaintiff’s contention. See *Oregon-Washington Railroad and Navigation Company*case, 60 C. Cls. 458. A smaller item claimed arises because of a deduction of 3 per cent from the plaintiff’s bills made by the disbursing officer or auditor, acting upon the Joint Military Arrangement No. 1 effective on and after January 1, 1921, by which the plaintiff and its connections agreed to accept a deduction of 3 per cent on *61transportation exclusively of commissioned officers and others of the United States Army, Navy, and Marine Corps. This provision does not extend to the National Guard, and therefore the deduction of 8 per cent was erroneous. Plaintiff is entitled to recover on account of this item. And it is so ordered.

GRai-iam, *Judge;*Hat, *Judge;*Downet, *Judge;*and Booth, Judge, concur.