1. Personal property of army officers, transported for them,
when changing stations, on government bill of lading at government
expense, pursuant to army regulation is not property of the United
States within the meaning of the railroad land grant acts, and is
not entitled to the special freight rates which those acts allow to
the government. P.
255 U. S.
344.
2. Where a railroad company for a long period, exceeding the
period of the statute of limitation, made a uniform practice of
charging on its books and billing and collecting the reduced land
grant rates for transportation of property of army officers on
which it was entitled to claim the higher commercial rates,
acquiescing without protest in the practice and decision of
government official which treated the property as public property
to which the lower rates were applicable,
held that its
conduct was inconsistent with any intention to reserve it right to
more than it collected, and that it could not recover more in the
Court of Claims. P.
255 U. S.
345.
54 Ct.Clms. 131 affirmed.
The case is stated in the opinion.
Page 255 U. S. 342
MR. JUSTICE McKENNA delivered the opinion of the Court.
This action brought by appellant is for the recovery of certain
balances amounting to the sum of $4,288.01, being the difference
between the amounts paid at certain rates for transportation of the
effects of army officers changing stations and those which it is
alleged were legally chargeable.
The Court of Claims adjudged that appellant was not
Page 255 U. S. 343
entitled to recover, and dismissed its petition. The cost of
printing the record in the case was awarded to the United
States.
There were findings of fact which show that the rates were
presented for payment to the proper accounting officers of the
government in the regular way and payments were made by the
disbursing officers of the government on vouchers certified to be
correct and presented by appellant. The charges so presented and
paid were at rates for such transportation over land grant roads
fixed in certain agreements known as the "land grant equalization
agreements" by which, to quote from the findings:
"the carriers agreed, subject to certain exceptions not material
to be noted, to accept for transportation all property moved by the
Quartermaster Corps, United States Army, and for which the United
States is lawfully entitled to reduced rates over land grant roads,
the lowest net rates lawfully available, as derived through
deductions account of land grant distance from a lawful rate filed
with the Interstate Commerce Commission from point of origin to
destination at time of movement."
That is, such freight was accepted by the carriers without
prepayment of the charges therefor upon the basis of the commercial
or tariff rates with appropriate deductions on account of land
grant distance as provided in the Railroad Land-Grant Acts. It is
manifest, therefore, that the commercial rates were higher than the
land grant rates, and this action is to recover the difference
between them and the land grant rates presented for payment, as we
have said, by appellant, and paid by the transportation officers of
the government.
After stating the action to be
"for the recovery of various amounts aggregating $4,288.01, in
addition to those paid on account of 176 items of freight
transportation furnished to and paid for by the United States,"
the
Page 255 U. S. 344
court, by Mr. Justice Downey, said the action
"is for a sum as to each item of transportation in addition to
that already claimed and paid as claimed for the same items, and is
not for any other or different or additional service nor for
omitted items."
And further:
"The case therefore involves not only the question of the
applicability of land grant rates to this class of freight
transportation, a question already decided adversely by this court,
but it involves further questions as to the right, under the
circumstances of the case, to now recover amounts not then
claimed."
The decision referred to is
Chicago, Milwaukee & St.
Paul Ry. Co. v. United States, 50 Ct.Cls. 412, and the ground
of its ruling was that the freight transported was not the property
of the United States, it being the effects of army officers, and
therefore was not entitled to land grant deductions, but was
subject to the commercial tariff. Necessarily, therefore, the
pending case must turn on other questions for the property
transported was the property of army officers, and subject
therefore independently of other considerations, to the commercial
rates. Appellant in the present case was paid sums less than those
rates, and there is left for consideration only its present right
to recover the difference between them and the land grant rates;
the latter being those that were paid.
The government, however, is not inclined to that limitation of
the issue, and attacks the ruling of which it is the consequence
and repeats the contention decided against it in that case, and
again insists that the property transported was government
property, and entitled to land grant rates and all else is
irrelevant. To this appellant replies that the government did not
appeal from the decision, and must be considered as having accepted
it. The effect is rather large to attribute to mere nonaction, but
we need not make further comment upon it,
Page 255 U. S. 345
because we think the decision of the Court of Claims was
correct. The personal baggage of an officer is not property of the
United States, and as such entitled to transportation at land grant
rates, and we are brought to the grounds of recovery urged by
appellant.
There are reasons for and against them. The assertion is of a
right of action and recovery against apparently a concession during
a long course of years to an explicit and contrary assertion by the
government. Appellant attempts to explain the concession -- or, let
us say, its nonaction -- as the compulsion of circumstances and of
a belief of the futility of action, and now urges that it never
intended to relinquish, but always intended to assert, its right.
The record, however, has much against this explanation, or that
cannot be accommodated to it, if we may ascribe to appellant the
usual impulses and interest that influence men.
It "and its predecessor company, whose properties, franchises,
and accounts it acquired, charged upon its books" the
transportation charges at land grant rates, and not at regular
commercial rates, so rendered its bills to the government, and
received payment without protest or the assertion of a greater
compensation. And there was prompting to protest and such
assertion. In 1904, according to a finding,
"the Union Pacific stated a claim against the United States at
regular tariff rates for transportation of household goods and
professional books of an officer of the army over the railroad
bridge at Quincy, Illinois."
The claim was disallowed, and thereafter the Union Pacific
stated its accounts at land grant rates. It also found that, in
1891 and in 1904, there was conversation between the Comptroller of
the Treasury and counsel in regard to the rulings of the
Comptroller, though not, the Court of Claims says, to a claim then
pending before the officer. Appellant, however, was not stirred to
either opposition or protest by the incident
Page 255 U. S. 346
with the Union Pacific or the conversation with the Comptroller,
but continued to render its accounts at land grant rates, and
accepted payment without opposition or action until the decision of
the Court of Claims in
Chicago, Milwaukee & St. Paul
Railway Co. v. United States, supra.
Counsel seem to make a merit of this uncomplaining and
unresisting acquiescence, and observe that the government by it
obtained the advantage of the plea of the statute of limitations.
The fact is significant. It is inconsistent with the reservation of
a right and an intention to subsequently make a judicial assertion
of it. Creditors are not usually so indulgent, and the appellant
had remedies at hand. The courts were open to it; certainly protest
was open to it. Its explanation for this nonaction is not
satisfactory. "It is advised and believes," is its allegation, and
now its contention, that
"its auditors and agents were led and constrained to render its
bills and vouchers . . . at tariff rates with land grant deductions
because the shipments were for the Quartermaster's Department and
upon government bills of lading which in terms are only applicable
to 'government property' and 'public property,'
and also
[because] the Comptroller of the Treasury (whose decisions are by
law made final and controlling upon the Executive Departments of
the government) had held that such transportation, upon government
bills of lading, when within the amount authorized to be
transported by departmental regulations at the expense of the
government, was quasi
-public property, and entitled as
such to land grant rates,"
and that it did not intend to waive its right to payment in full
or to sue, "if so advised" for the balances due "so far as the same
were not barred by the statute of limitations."
The italics are counsel's, and we repeat them as they give
emphasis to counsel's conviction of the justification
Page 255 U. S. 347
of the excuse. We do not share it. The mere mechanism of the
bills of lading or their false designations of the property
transported could not have imposed on anybody, certainly not on
"the auditors and agents" of a railroad company, and the decisions
of the Comptroller were as much open to dispute then as now and
resort to suit an inevitable prompting, and yet, we have seen, the
statute of limitations was permitted to interpose its bar. The
excuse of appellant is hard to credit. Its "auditors and agents"
were not ignorant of affairs, nor unpracticed in the controversies
of business and the means of their settlement. The auditors and
agents of railroad companies are not usually complaisant to denials
of the rights of the companies they represent. We do not say this
in criticism, for such is their duty, the necessary condition of
their places.
We are forced, therefore, to conclude that appellant's nonaction
was deliberate, based upon a consideration of its advantages, with
no thought of ultimate assertion against the decision of the
government until stirred to acquisitiveness by the decision in the
Chicago, Milwaukee & St. Paul case, a decision which,
we may say in passing, was declared by the Court of Claims to have
been improvidently given.
B. & O. R. Co. v. United
States, 52 Ct.Cls. 468.
The case therefore falls within the rulings of
United States
v. Bostwick, 94 U. S. 53;
Baird v. United States, 96 U. S. 430;
Railroad Co. v. United States, 103 U.
S. 703;
Central Pacific Ry. v. United States,
164 U. S. 93. And
they have supplemental force in
United States v.
Edmondston, 181 U. S. 500;
Utermehle v. Norment, 197 U. S. 40.
These views lead to an affirmance of the judgment upon the
record as it now stands. It should be said, however, that they are
based on the concessions of appellant to the action of the
accounting officers, and the
Page 255 U. S. 348
Court of Claims makes this a point in its decision. The court
said that from the "long-continued uniform course of action by"
appellant "for a long period of years," "it had no intention of
claiming anything more in the certified vouchers and paid." And
added:
"All the facts justify this conclusion, for a course of conduct
is more potent than assertions of belief unacted on. But, if such a
conclusion were otherwise subject to question, it appears from the
evidence that the plaintiff's [appellant] charge upon its books was
only of the amount claimed in its vouchers, and that, when that
amount was paid 'the transaction was behind us.' The quoted
language is the language of plaintiff's auditor."
In explanation of this, it may be said, and in contradiction of
its implication, appellant requested findings by the court that the
transaction of the appellant and its predecessor company
"was regarded by the auditing department of the company as
closed, so far as they were concerned, but as subject to subsequent
adjustment or suit in court if subsequently found to be
incorrect,"
and further that the government considered the accounts between
"the carriers as in the nature of running accounts, subject to
correction as the occasion arises, in the light of the law and the
facts." And it is contended that the evidence supports such
conclusion. This is disputed by the government, and it is doubtful.
The government concedes that a motion to remand the case for
additional findings has foundation in the record, but contends
"that the requests are without merit, and that the case is fully
covered by the facts found," and adds, "of course, insofar as the
motion tends to request the Court of Claims to change findings
made, it is futile, as the findings are conclusive."
The government further urges that the proposed amendment to
finding VI is covered by findings VI
Page 255 U. S. 349
and IX, and is only a request "to change a negative to a
positive finding," that the amendment to finding X is "rather an
argument that certain conclusions should follow from facts found,"
and that "its conclusion, from the facts found, is that both
parties regarded the settlements as final, not as tentative." The
amendment to finding XI is, the government says, "a request to find
evidence" which is contrary to the rules, and, besides, the
evidence is immaterial.
We concur with the government that the request for findings is
an effort to change negative to positive findings. The reasoning of
the court expresses implicitly, if not explicitly, a view contrary
to that expressed in the request. In other words, the court
regarded the settlements of appellant with the government as final,
and not as tentative.
Judgment affirmed.
MR. JUSTICE PITNEY and MR. JUSTICE CLARKE concur in the
result.