#### CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RY. CO. v. THE UNITED STATES

[No. B-145.

Decided February 20, 1928]

*On the Proofs*

*Statute of limitations; passenger service.*— The statute of limitations, sec. 156, Judicial Code, runs from the time that carriers complete a passenger service, and not from the date that the transportation is requested.

*535*Railroad rates; nnlitary arrangements ; usually-traveled routes.*— See *Baltimore & Ohio R. R. Go.*v. *United States,*60 C. Cls. 359.

*The Reporter's*statement of the case:

*Mr. John, J.*Damlhof,. *jr.,*for the plaintiff. *Mr. Parker McOollester*was on the briefs.

*Mr. Lisle A. Smith,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

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. The plaintiff and its connecting lines participating in the transportation hereinafter described were at the times thereof parties to various contracts with the United States relating to transportation of troops and property therefor, as follows:

An agreement known as .Interterritorial Military Traffic Supplemental Arrangement, dated March 1, 1916, and effective on and after July 1,1916;

An agreement known as Interterritorial Military Arrangement No. 1, effective January 1, 1917;

An agreement known as Supplement No. 1 to Interterri-torial Military Arrangement No. 1, effective June 2, 1917.

The foregoing agreements provided that the fares applicable thereunder should be the “ lawful commercial fares ak on file with the Interstate Commerce Commission * * *, less lawful land-grant deductions * * *, less five per cent (5%) allowance,” not to exceed certain specified maxima, and that the net fares so arrived at should be available to the United States “ via usually-traveled routes for military traffic, subject to the equalization agreements.”

III. At the times of the transportation hereinafter described the plaintiff and its aforesaid connecting lines were also 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 over land-grant roads, the carriers agreed “ to accept lowest net fare * * * lawfully available, as derived through deductions account land-grant distance via a usually traveled *536route 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.”

IY. At various times during 1916 and 1917 the plaintiff and its connections transported troops of the United States from Columbus, Ohio, and from Fort Benjamin Harrison, Ind., to various points in Texas.

Y. The transportation so furnished was in accordance with requests made on a form prescribed by the accounting officers of the Government, and said requests were in each instance presented by an officer of the Army to an agent of the plaintiff. Upon such presentation the necessary tickets were issued to the Army officer, who indorsed on the requests a statement as to what “transportation” had been furnished and the date furnished, and then returned them to the agent.

YI. As the initial carrier issuing the tickets for the requested transportation it was plaintiff’s duty to collect the fares for itself and its connections. Accordingly it prepared and presented to a proper officer of the United States bills for the amounts of the transportation charges here involved, computed under its tariffs and the said contracts.

VII. Plaintiff rendered its bills numbered 68209 and 68205 to the Auditor for the War Department stated at a net per capita fare of $27.02. The tiavel involved was from Fort Benjamin Harrison, Indiana, to Llano Grande, Texas, and was on transportation requests. On bill 68209 the request for the transportation of 476 men was dated July 6, 1916. On bill 68205 there were requests dated, respectively, July 7, July 8, July 10, July 11, and July 12, 1916. Deductions were made on account of transportation under the said requests dated July 6, July 7, and July 8, amounting to $3,465.28. The transportation under these requests was performed more than six years prior to the filing of the petition in this case. Deductions from bill 68205 upon requests dated July 10, July 11, and July 12, 1916, amounted to $4,863.44. The transportation under these requests was performed within six years of the time of filing the petition in this case. In making the deductions the Auditor for the War Department applied an erroneous net fare.

*537VIII. (1) The plaintiff submitted to the defendant its bills numbered 71262, 74130, 77235, 83219, and 92296, and the defendant’s accounting. officer deducted directly therefrom or withheld in settlement of accounts for1 other services as an overpayment on said bills an aggregate of $1,726.66 by applying erroneous net fares. The underpayment of $1,726.66 remains unpaid.

(2) Plaintiff’s bill No. 95221 was for the transportation of 508 men in April, 1917, after the 6th thereof, from Columbus, Ohio, to points in Texas, and was submitted to the defendant on the basis of net fares computed with a 100 per cent land-grant deduction calculated by way of the Missouri Pacific system in Arkansas. In settling this bill the Auditor for the War Department made a deduction of $1,332.30 by applying an erroneous combination of party fares. If the net fares by way of the land-grant lines of the Missouri Pacific system in Arkansas, a land-grant railroad organized under the act of July 28, 1866, chapter 300 (see act of October" 6, 1917, 40 Stat. 345, 361), be calculated on a 50 per cent instead of a 100 per cent land-grant basis, application of the lowest net fare available under the agreements mentioned in Findings II and III results in an undercharge or deficiency in claim in plaintiff’s original bill of $1,502.16, which, added to the aforesaid deduction of $1,332.30, makes an aggregate underpayment of $2,834.46.

The troops moving under transportation requests embraced in bill No. 95221 traveled via plaintiff’s line to St. Louis, Mo., thence via various connecting lines which are not identified.

IX. The plaintiff duly protested against each of the aforesaid auditor’s settlements.

The court decided that plaintiff was entitled to recover $9,424.56.

Campbell, *Chief Justice,*

delivered the opinion of the court:

On a former hearing in this case the,, court was of the opinion that a number of items were barred by the statute of limitations, but upon a rehearing the evidence makes clear, as to some of these items, that plaintiff is entitled to *538recover, the service having been rendered within six years from the date of the filing of the petition. The mere date of a transportation request does not determine the date of the accrual of the cause of action. The plaintiff upon this feature is entitled to recover on account of the deductions made on requests dated July 10, 11, and 12, 1916. (Finding VII.) On account of the application of erroneous net fares made by the accounting officer the plaintiff on a number of its bills (Finding VIII) was underpaid. On another of its bills for the transportation of men after the 6th of April, 1917 (see 40 Stat. 361), from Columbus, Ohio, to points in Texas a deduction was made by the Auditor for the War Department by applying an erroneous combination of party fares. For the amount so deducted the plaintiff should recover. And calculating the net fares on a fifty per cent basis instead of on a one hundred per cent land-grant basis (see 40 Stat. 361) the application of the lowest net fares available results in an undercharge in plaintiff’s original bill, as stated in the findings. This court has held *(Baltimore & Ohio Railroad Co.*case, 60 C. Cls. 359, 367, Finding X) that the route by way of Chattanooga, Meridian, and Shreveport is via usually-traveled route for military traffic. Putting the 100 per cent land-grant road on a 50 per cent basis has the effect of making the route via St. Louis a more expensive route, and plaintiff seeks to recover for some of the transportation upon the basis of 50 per cent land-grant basis instead of 100 per cent land-grant. It must, therefore, take the burdens, as well as the benefits, of the act of October 6, 1917.

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