#### MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RY. CO. v. THE UNITED STATES

[No. D-515.

Decided February 20, 1928]

*On the Proofs*

*Railroad, rates; transportation of 'National Guard; general protest against lan<t-gram,t deductions.*— Notices filed with the Quartermaster General of the Army June 11, 1921, and June 28, 1922, by interested carriers, that transportation of the National Guard was considered by them as not that of “ troops of the United States ” within the meaning of the land-grant acts, that *558they did not waive their right to claim commercial fares therefor without land-grant deductions, and that the purpose of the notices was to protect their rights until the question was finally adjudicated in the courts, were sufiicient, under the rule stated in *Southern Pacific Co.*v. *United States,*268 U. S. 263, and for the period mentioned to show that said carriers did not acquiesce in land-grant deductions in bills presented at net fares in reliance upon the said notices.

*The Reporter's*statement of the case:

*Mr. Lamrenee H. Oake*for the plaintiff. *Britton & Gray*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, a corporation, is a common carrier by-railroad of freight and passengers.

II. Under the acts of Congress granting lands in aid of railroads and the acts of Congress appropriating money for the War Department and for Army transportation, the land-grant railroads have been required to transport “ troops of the United States ” at reduced fares, being less than those charged other persons for similar transportation.

III. Prior to the performance of the service hereinafter mentioned, the railroads of the United States generally, including the plaintiff, entered into a certain agreement with the Quartermaster. General of the Army which provided that the railroads generally, whether land-grant or nonland-grant, would accept “ for transportation of persons for whom the United States Government is lawfully entitled .to reduced fares over land-grant roads ” the 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, when the movements were made under. Government transportation requests of the issue of the War Department, Navy Department, or Marine Corps.

*559IV. During 1921, 1922, and 1923 the plaintiff 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 Army and by the national defense act of June 3, 1916, as amended.

V. The said members of the National Guard had subscribed to the dual oath or enlistment contract provided by the national defense act of June 3, 1916, as amended, and they and their organizations had been recognized by the Secretary of War as having fully complied with the provisions of the said act, as to organization, qualification, and training.

VT. 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 insurrection, or repel invasion, and they had not been drafted into the military service of the United States as authorized by section 111 of the national defense act. 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 91 of the national defense act.

VII. On account of the said transportation the plaintiff in some instances stated its bills at full tariff fares and was paid accordingly, but later the payments were disallowed and deductions were made from other bills either by the accounting office or the disbursing officer. In other instances the bills were stated at net land-grant fares with a protest against such fares written or stamped on the face of each bill. On account of all such transportation, covered by the plaintiff’s bills 452, 592, and 524, the land-grant deductions amounted to $160.83.

VIII. On June 11,1921, there was filed with the Quartermaster General of the Army a joint notice by all carriers, including the plaintiff, acting; by and through their passenger associations and agencies, upon the subject of the transporta*560tion of the National Guard. This notice stated that the carriers understood it to be the Government’s intention to claim deductions, on account of land grants, on transportation of members of the National Guard to and from encampments, training camps, and maneuvers, and that they accordingly served notice that the transportation of the National Guard, as above stated, was not a transportation of troops within the meaning of the land-grant acts and that the carriers filed the notice in order that no misunderstanding of their position might arise, and to the end that it would be fully understood that they did not waive the right to claim payment for such transportation at full commercial fares without land-grant deduction.

On May 11, 1922, a decision was rendered by the Comptroller General to the effect that certain of the National Guard are a pai’t of the military force of the United States and that charges for their transportation were subject to land-grant deductions. Following this ruling the carriers, including plaintiff, acting through their constituted agencies, already stated, filed with the Quartermaster General of the Army another notice dated June 28, 1922, reiterating their position taken in the earlier notice of June 11, 1921, claiming that the National Guard were not troops of the United States within the meaning of the land-grant acts, and that their status was as declared in the case of *Alabama Great Southern Railroad Company,*49 Court of Claims, 522. The notice concluded with the statement that it was filed for the purpose of protecting the carrier’s rights until the question should be finally adjudicated in the courts. The disbursing officers would only pay for transportation of members of the National Guard in accordance with the ruling of the Comptroller General. Relying upon said notice, the plaintiff presented its bills 745 and 1304 for transportation of National Guard on requests duly issued June 6, 1922; July 7, 1923; July 20, 1923; and July 30, 1923, at net land-grant fares, and they were paid by the disbursing officer accordingly. No protest appeared upon the bills nor was any made when the bills were paid. The amount of land-grant deductions on these bills was $26.85.

*561The court decided that plaintiff was entitled to recover $787.68.

Campbell, *Chief*Justice,

delivered the opinion of the court:

Most of the questions arising in this case upon the stipulated facts have been passed upon by the court in other cases. There is, however, a question involving a claim small in amount but recurring in other cases, several of which are now under submission. That question arises upon the effect to be accorded certain notices given by the carriers to the Quartermaster General of the Army relative to the claims now asserted. These notices relate only to fares for specified movements of members of the National Guard. It appears from the findings of fact that a difference existed between the carriers and the accounting officers as to whether the charges for transportation of the National Guard were subject to land-grant deductions, and that the carriers delivered notices to the Quartermaster General, one in June, 1921, and another in June, 1922, which set forth their position and claim and conclude with the statement that the notice was filed in order to protect the rights of the carriers until the question should be finally adjudicated by the courts. In some, instances, after the first of these notices, some bills were presented for transporting members of the National Guard, which were stated at net land-grant fares and they were paid as rendered. No sort of protest appeared on the bills themselves, nor does it appear that any protest was made on receipt of the amount of the bills. Unless the notices referred to took the place, so to speak, of protests or objections on the bills or on receipt of payment there can not be a recovery under numerous decisions of the courts. In *St. Louis Southwestern Ry. Co. case,*62 C. Cls. 73, 76, this court held that-a certain notice in advance of the claims of the carriers did not remove the necessity of protest or prevent the carrier from accepting less than full fares, but it is to be noted that the notice in that case is not set forth in the findings, and it bears a different date from the notices appearing in this case.

*562In the present case the purpose of the notices, as well as their substance, is found. It is recognized in *Southern Pacific Co.*case, 268 U. S. 263, that “ by a general notice in advance to the War Department ” the carrier may protect or reserve rights which otherwise would be waived or 1'ost. It is certainly true that the carrier “ was not compelled at its peril to present its claims originally for the full tariff rates * * * but that, having first presented its claim for the land-grant rates accompanied by notices showing that it did not accept such rates in final settlement, it was thereafter entitled to bring suit for the recovery of the remainder of the full-tariff fares.” *Southern Pacific Go.*case, 268 U. S. 263, 270. In this'case the Supreme Court says that the crucial question is whether the conduct of the plaintiff in accepting land-grant rates establishes an acquiescence “ in the nature of an abandonment or waiver ” that operated as a discharge of its claim for full passenger rates. There is no acquiescence, no abandonment or waiver, when the objection accompanies the bill as finally presented for payment or when there is a valid protest when payment is received. The carriers gave notice in advance of the presentation of the bills for a particular service about which there was a positive difference between the parties. This notice was given to the Quartermaster General, who represented the Government as contracting officer in the matter of transportation. What effect, if any, is to be given the notices ? This court had held *(Alabama Great Southern R. R. Co.,*49 C. Cls. 522) that members of the National Guard were not troops of the United States until called into service as provided for in the Constitution. But some changes had been made in the statutes, and the accounting officers had again ruled that the transportation of the National Guard was subject to land-grant deductions. The railroads and the Quartermaster General had entered into what is known as equalization agreements, whereby the carriers undertook that they would accept for transportation of persons for whom the Government would be entitled to reduced fares over land-grant roads the lowest net fare lawfully available as derived through deductions on account of land-grant *563distance via a usually-traveled route for military traffic from a lawful fare duly filed with the Interstate Commerce Commission.

In other words, the carrier would equalize its charge for transportation with that of land-grant roads on a usually-traveled route between the points of origin and destination. Whether the transportation of the National Guard was affected by the land-grant acts became therefore not only of .interest to land-grant roads but of serious importance to other roads, parties to the equalization agreements. The transportation of the National Guard upon requests of the Government might originate upon a road in nowise affected by land-grant acts, and the bill would include services of connecting lines to which the initial carrier would have to account, because for passenger transportation the bills would be presented by the initial carrier and not by the final carrier, as in the case of freights. It was of prime importance that the initial carrier should correctly state the bill when it would be liable to its connecting carriers for the amount it should have collected. In these circumstances it was the part of prudence that the Quartermaster General of the Army should be notified in advance that the equalizing carriers would assert the right to be paid without land-grant deduction for transporting these persons until the courts should decide against them. The difference between' the carriers, on the one hand, and the Government, represented by the accounting officers on the other hand, was definitely known, that difference relating to one class of persons who would be frequently transported — members of the National Guard. That there might not appear to be an acquiescence in the ruling of the accounting officers in the matter the notice was given in advance. Confining it to the ruling in question and to the designated class of persons and the limited time there does not appear to be any reasonable ground for denying it the effect ,it was designed to have. It was in the circumstances stated a sufficient protest and objection against the land-grant deductions from bills at full tariff rates for transporting members of the National Guard, and rendered unnecessary a repetition of practically the same notice when the bills should be presented or paid.

*564We think the plaintiff should have judgment for this item. And it is so ordered.

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