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

[No. B-93.

Decided January 7, 1924]

*On the Proofs*

*Res judicata.*— Items of a claim that were included in a prior suit in this court in which judgment was rendered are *res judicata,*and there can be recovery thereon.

*The Reporter’s*statement of the case:

*Mr. William R. Harr*for the plaintiff. *Harr di Bates*were on the briefs.

*Mr. George H.*Foster, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. Plaintiff is a corporation duly created, organized, and existing under the laws of the State of ,Kentucky, and as, such corporation nowT is, and was during all of the times when the services hereinafter mentioned were performed, engaged as a common carrier by railroad in the transportation,. *98of passengers and freight in and through various States of the United States and between the points referred to herein, either directly over its own lines or in participation with connecting carriers.

II. Under the acts of Congress granting lands in aid of railroads and acts of Congress regulating the expenditures of appropriations by the United States for Army transportation over such land-grant railroads, said land-grant railroads were required to transport troops of the United States at certain less rates than those charged private parties for similar transportation.

Some years ago, and prior to the times when the services hereinafter mentioned Avere performed, the railroad companies of the United States, generally, including plaintiff, severally agreed with the Quartermaster General of the United States Army (subject to certain exceptions not necessary here to be stated) to accept, for the transportation of troops of the United States, the loAvest net fare, and loAvest net excess-baggage rate, lawfully aAraiIable as derived through deductions on account of land-grant distance via a usually traveled route for military traffic from a laAA'ful fare filed with the Interstate Commerce Commission as applying from point of origin to destination at time of movement. These agreements, commonly known as “ land-grant equalization agreements,” were in force at the times of the transactions hereinafter referred to. Circular No. 23, Quartermaster General’s Office, 1911, dated November 15, 1911; Circular No. 6, Office of the Chief, Quartermaster Corps, 1913, dated March 1,1913; and Appendix No. 9 to Manual of U. S. ■Quartermaster Corps, 1916.

III. During the periods (1) May 8, 1916, to April 6, 1917 (the latter being the date of the entrance of the United States into the war with Germany), and (2) March 1, 1920, to April 1, 1922, plaintiff, upon transportation requests issued by the Treasury Department of the United States, transported certain persons belonging to the United States Coast Guard.

In settling plaintiff’s bills for the aforesaid transportation the accounting officers of the Government allowed and paid plaintiff therefor only at the reduced fares required of plain*99tiff by the aforesaid railroad land-grant acts and equalization agreements in respect of the transportation of troops of the United States.

At the times of said transportation the United States was at peace and the Coast Guard was charged only with the performance, of civil duties and was operating under the Treasury Department.

IV. Except as hereinafter stated, the statements annexed as Exhibit A to plaintiff’s petition correctly set forth the transportation referred to herein, the amounts due plaintiff therefor at full commercial rates, the amounts paid plaintiff therefor by defendant at- land-grant fares as for “ troops of the United States,” and the balances due plaintiff therefor if plaintiff is entitled to recover the same in this suit.

. V. The items enumerated in the first table set forth in said Exhibit A to the petition, covering the period from May 8, 1916, to April 6, 1917, totaling $476.17, were included in plaintiff's petition in case No. 34205 in this court, which was dismissed May 16, 1921. *Southern Pacific Go.*v. *United States,*56 C. Cls. 282.

VI. The first item in the second table set forth in Exhibit A to the petition, covering transportation request No. 185325, March 8, 1920, one fare. San Francisco, Calif., to Astoria, Oreg., bill P-181, balance claimed $3.00, has been withdrawn by plaintiff, having been included therein by mistake.

VII. The following bills were stated by plaintiff against the United States with the amounts deducted on account of grants of public lands, such deducted amounts being herein shown as “ balance claimed,” totaling $613.90:

*100Tlie following1 form of protest was stamped, by plaintiff on the aforesaid bills:

“ As the United States Government accounting officers insist they have no authority, under the land-grant laws, to pay for transportation of the following class of transportation* any higher fare or charge than for the transportation of £ troops of the United States,’ the Southern Pacific Company in accepting payment of a lesser amount does not waive its right to full published tariff fares and charges and a payment of any less amount is accepted under protest as part payment only for the services performed (Coast Guard).”

VIII. The following bills were stated by plaintiff at full published tariff fares with no deduction on account of land-grant, but defendant in making settlement thereof made land-grant deductions which are shown herein as “ balance claimed,” totaling $2,024.96:

Upon payment being made by the Government in the lesser amount, plaintiff filed protest on each of the aforesaid bills in the following form:

“ Southern Pacific Company claims that it is entitled to full published tariff fares applicable to persons other than ‘ troops of the United States,’ and payment in any less sum .than the full amount of its bill is accepted under protest and as part payment only for the service rendered.”

IX. In the following instances bills were stated by plaintiff with land-grant deduction, and no express protest ap*101pears of record against the payment made in any such instances, such deducted amounts being herein shown as “ balance claimed,” totaling $143.95:

Balance BUI; claimed 2640_ $4.10 2S17-A_ 10. 33 2903_ 20. 49 3011_ 4.13 3851_ 16. 24 4207_ 20. 05 Balance Bill: claimed 4280_$21. 04 5584_ 5.15 4205_ 33. 42 Total_143. 95

X. The following bills were stated at full published tariff fares with no deduction on account of land grant, but defendant in making settlement thereof made land-grant deductions which are shown herein as “balance claimed,” totaling $55, and no express protest was made against payment on the lower basis:

Bill: Balance claimed

4562_$50. 04

4642 -_ 4. 96

Total_ 55. 00

XI. All items were paid by the Treasurer of the United Sttites upon the certificates of the Auditor for the Treasury Department or of the Comptroller General of the United States to the Secretary of the Treasury of the amount found due.

The settlements so made by the Auditor for the Treasury Department and by the Comptroller General of the United States were effected prior to the decision of the Comptroller General of the United States of May 12, 1922, in the case of an appeal by the Galveston, *Harrisburg <& San Antonio Bail-way Oo.,*1 Comp. Gen. 657, and before the decision of the Supreme Court of the United States in the case of the *Louisville c& Nasb/ville B. B. Go.*v. *United*States, decid'ecl April 10, 1922, 258 U. S. 374, referred to therein, holding that members of the U. S. Coast Guard, in time of peace, were not “ troops of the United States ” and that land-grant deductions should not be made from charges for transportation of the Coast Guard under the Treasury Department.

*102MEMORANDUM BT THE COURT

The items as to which judgment is awarded were claimed at full commercial rates and the disallowance was protested when payment was made. It was a class of transportation for which plaintiff was entitled to full rates without land-grant deduction.

The items referred to in Finding V were included in a former action dismissed by the court and are *res*judicata. See section 179, Judicial Code.

As to the items referred to in Finding VII, see cases of *Southern Pacific Co.,*No. 33946, and *Western Pacific R. R. Co.,*this day decided, *ante,*pp. 36 and 67.

As to the items referred to in Finding IX, see case of *Baltimore & Ohio R. R. Co.,*52 C. Cls. 468, and *Oregon-Washington R. R. & Nav. Co.,*54 C. Cls. 131; 255 U. S. 339.

As to the items referred to in Finding X, see also *Atchison, Topeka & Santa Fe Ry. Co.,*58 C. Cls. 583.

Judgment for plaintiff under Finding VIII, in the sum of $2,024.96, and otherwise, the petition is dismissed.