1. A railroad company, acquiescing in the practice and rulings
of government officials, charged and collected the reduced "land
grant" rates for transportation of army officers' effects, upon
which it was entitled to collect higher commercial rates.
Held that it had waived it right to collect more, and
could not recover more in the Court of Claims. P.
255 U. S. 355.
See Oregon-Washington R. & Navigation Co v. United States,
ante, 255 U. S. 339.
Page 255 U. S. 350
2. The transportation of army officers' effects for the
government at government expense may be done at special reduced
rates under § 22 of the Interstate Commerce Act. P.
255 U. S. 356.
54 Ct.Clms. 215 affirmed.
The case is stated in the opinion.
Page 255 U. S. 353
MR. JUSTICE McKENNA delivered the opinion of the Court.
The basic proposition in this case, and most of its subsidiary
considerations, are the some as in
Oregon-Washington Railroad
& Navigation Co. v. United States, ante, 255 U. S. 339. It
was argued at the same time as the latter case, and, as in that
case, it is to recover amounts withheld by the accounting officers
of the government as land grant deductions in settlements for
transportation of the personal effects of army officers.
It is asserted, however, that this action differs from No. 134
in that the Western Pacific Railroad was not completed and in
operation until 1910, so that it is said "there is absent the
element of previous course of dealings relied upon by the
government, and in that there was introduced in evidence" testimony
to the effect that the first voucher presented for transportation
service was for full tariff rates.
It is stated in the findings that the real claimants in the case
are the receivers of the railroad, but that its name is used to
designate claimants for convenience, and that, between June 10,
1910, and March 18, 1915, the railroad, at the request of the
United States, as shipper or consignor, received from other
railroad companies at connecting points, on government bills of
lading, and transported over its lines the effects and property of
officers of the United States army changing stations under
orders.
It further appears that, from June 10, 1910 to March 18, 1915,
the presentation of claims, character of vouchers accompanying the
same, action thereon by the accounting officers of the government,
payment and receipt were the same as in No. 134, except it is found
that
"settlements for charges on freight shipments on government
bills of lading were in charge of one David A. McLean, head of the
freight revising bureau in the office of the general auditor
Page 255 U. S. 354
of the plaintiff [appellant] in San Francisco."
And it is found,
"it was the practice of said McLean to revise the bills of
lading and apply the rates applicable on the traffic at commercial
rates, make the land grant deduction and compute the freight
charges at the net rate. After a month's bill of lading had been
revised, it was his practice to check up with the quartermaster's
office and adjust differences, where there were any differences, as
to the correct charges. He then caused the claims to be stated on
the prescribed voucher form, and after being signed, they, with the
bills of lading attached, were forwarded to the quartermaster for
payment. It appears that, to the best recollection of said McLean,
he stated the first of these claims, during this period at
commercial rates, but, being informed by the quartermaster's office
of the applicability of land grant rates under the holding of the
Comptroller and the established practice, he restated the claim on
a land grant basis. It further appears that he had just come to the
service of the plaintiff; that he had had no experience in the
rendering of bills for government transportation; that, as soon as
he learned the custom with reference thereto, he rendered bills for
transportation of the character here involved at land grant rates
and continued to do so during all of said period. The rendering of
the bill referred to at commercial rates, if in fact he so rendered
it, was due to his ignorance of established practice, and not
because of any intention to question the propriety of the practice
or to claim as a matter of right the application of commercial
rates. It is not shown that at any time during this entire period
he ever questioned the application of land grant rates to such
transportation or protested any settlements on that account, but
all bills rendered by him, except as stated, were rendered at land
grant rates, and, when so rendered, he did not expect any further
compensation, and never expected compensation at other than land
grant rates until after the decision
Page 255 U. S. 355
of the Chicago, Milwaukee and St. Paul case by this court.
*"
It is further found that
"the difference between the amounts claimed by the plaintiff and
paid on account of said transportation during said period and the
amount it would receive had it claimed and been paid full
commercial rates without land grant deduction is $5,760.89."
The rulings of the accounting officers are detailed in the
findings.
From March 18, 1915, to August 1, 1916, it is found that
appellant was entitled "to payment at the regular tariff rates
applicable." The government accounting officers, notwithstanding,
"issued warrants for net amounts after making land grant
deductions." Against this appellant protested. The amounts deducted
amounted to $851.78.
The conclusion of the court was, and its decision was, that
appellant was entitled to judgment for the sum of $851.78, and
that, as to the other amounts, its petition should be dismissed.
For this the court gave as authority its decision in the
Denver
& Rio Grande R. Co. v. United States, decided on the same
day, 54 Ct.Cls. 125.
The opinion in the latter case is set out in the record at page
16.
The argument in this case is the same as in No. 134, and rests
on the same considerations. This case, as we have seen, was decided
on the authority of
Denver & Rio Grande R. Co. v. United
States, and the latter on the
B. & O. R. Co. v. United
States, 52 Ct.Cls. 468 and 534.
A contention, however, is made that was not made in No. 134 --
that is, that,
"under the Interstate Commerce Law the final carrier [appellant
was final carrier of the transportation with which this case is
concerned] is not
Page 255 U. S. 356
only empowered to collect the through charge, but is burdened
with the duty and obligation of collecting the full published
tariff rate, and is powerless to relieve or release a shipper or
consignee from any part of the same."
The further contention is that within this obligation is the
property in the pending case. The immediate answer is that § 22 of
the Interstate Commerce Act permits reduced rates to the United
States, and that, by Conference Ruling of the Interstate Commerce
Commission No. 33 of February 3, 1908, § 22 is made applicable to
property transported for the United States. The transportation in
the present case was for the government, and, in providing for it
and paying for it, the government performed a governmental
service.
Judgment affirmed.
MR. JUSTICE PITNEY and MR. JUSTICE CLARKE concur in the
result.
* 50 Ct.Cls. 412.