#### ST. LOUIS SOUTHWESTERN RY. CO. v. THE UNITED STATES

[No. D-523.

Decided April 5, 1926]

*On the Proofs*

*Protest; when to he made.*— In order to be effective a protest or* objection against a payment by the United States for services rendered must be made when the bill was presented or payment was accepted.

*The Reporter's*statement of the case:

*Mr. Lawrence H. Cake*for the plaintiff. *Britton & Cray*were on the brief.

*Mr. Louis R.*Mehlinger, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Mr. Perry W. Howard*was on the brief.

The 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 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 herinafter 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 15r Quartermaster General, May 18, 1922.

*74IY. During the years of 1922 and 1928 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 support 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. 780.

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, qualifications, and training.

VI. 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 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.

YU. (1) For the transportation services so performed the plaintiff in some instances presented its bills to the defendant stated at full tariff fares without land-grant deduction, and was so paid by the disbursing officer. Thereafter, at a date not shown, the disbursing officer, on the ground that the men transported were troops of the United States within the meaning of the land-grant acts and that land-grant deductions should have been made from said bills, withheld corresponding amounts, totaling $81.72, from payments otherwise due the plaintiff.

(2) In another instance the plaintiff billed the transportation to the defendant at net fares, i. e., with land-grant deduction, stating on the bill that it was so done under protest, and payment was made by the disbursing officer at the

*75amount so computed. The land-grant deduction thus made by the plaintiff amounted to $88.96, and plaintiff has not received payment thereof.

(3) In another instance, for transportation furnished in August, 1923, the plaintiff presented its bill to the defendant at net fares, i. e., with land-grant deduction, and payment was made accordingly by the disbursing officer. The land-grant deduction by the plaintiff was $56.16; it has not received any part thereof, and it did not at the time it presented its said bill or thereafter indicate an objection to or protest against such deduction or payment.

VIII. On July 1, 1922, a notice by carriers who were parties to contracts known as Joint Military Arrangement No. 1 and Joint Military Equalization Agreement No. 1, among which were the plaintiff and its connections, was filed with the Quartermaster General of the Army, asserting the carriers’ right to full tariff fares for the transportation of the National Guard and protesting against the application of land-grant fares.

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

Campbell, *Chief*Justice,

delivered the opinion of the court:

The claims of plaintiff grew out of the transportation of members of the National Guard, and are for the amounts of certain land-grant deductions made from the carrier’s bills by disbursing or accounting officers. It has been decided that the transportation of members of the National Guard, in cases like the present one, is not governed by the land-grant acts relative to troops of the United States. See *Oregon-Washington Railroad & Navigation Co.*case, 60 C. Cls. 458. That question being eliminated, the items asserted may be divided into three classes:

(1) The plaintiff, having performed the service, presented its bills therefor at full tariff rates without land-grant deduction, and was paid by the disbursing officer. Thereafter amounts were deducted from other bills of the plaintiff by the disbursing officer upon the theory that land-grant deductions should have been made from the former bills. *76This deduction was improper under the ruling in the case just cited. (2) The plaintiff presented certain bills for services at net fares; that is, it made land-grant deductions, but it stated on the bills that these deductions were made under protest. This class is controlled by the decisions of the Supreme Court of the United States in the cases of *Western Pacific R. R. Co.,*268 U. S. 271; *St. Louis, Brownsville*& *Mexico Ry.,*268 U. S. 169; and *Southern Pacific Co.,*268 U. S. 268, and plaintiff should therefore recover the amount of the deduction. (3) In the third class it appears that the plaintiff presented its bills at net fares, as in the second class mentioned above. It was paid the amount shown in the bills. Payment was accepted without protest or objection.

The contention is now made that in July, 1922, more than a year previous to the service, rendered in August, 1923, for which compensation is sought, the plaintiff and other carriers, parties to what is known as Joint Military Arrangement No. 1 and Joint Military Equalization Agreement No. 1, filed with the Quartermaster General of the Army a notice which, in effect, asserted the right of these carriers to full tariff fares for transporting members of the National Guard and protested against the application of land-grant fares. This contention would carry the effect of a supposed protest beyond anything that has heretofore been held, though it was supposed that the cases above cited settled the questions arising out of protests. In these cases the protest or objection was part of the transaction between the carrier on the one hand and the Government’s disbursing officer or accounting officer on the other hand. The question was whether payments as made and accepted under the facts were conclusive. No protest or objection accompanied the bill under consideration and it was presented at the net fares. This method of rendering the bill was entirely) voluntary. The plaintiff could have protected any right it had to greater fares by a timely objection and protest, and to be timely such objection and protest should have been made known when the bill was presented or payment was accepted.

*77If it be true that the carriers gave notice to the Quartermaster General of their claims, this did not prevent them or any of them from accepting less than full fares or prevent their waiving the effect of the notice if they chose to do so. In the *Southern Pacific Co.*case, supra, it is said (p. 268) :

“ 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.”

The plaintiff can not recover upon this third class. Judgment will be rendered for the claims of the first and second' classes, but the petition should be dismissed as to the others.. And it is so ordered.

GRAHAM, *Judge;*Hay, *Judge;*Dowkey, *Judge;*and Booth, Judge, concur.