1. Where a railroad, for transporting applicants for enlistment
in the Army, discharged, retired and furloughed soldiers, and
civilian employees of the War Department, rendered its bills at
land grant rates, knowing that, according to a ruling of the
Comptroller of the Treasury, such persons were to be regarded as
"troops of the United States" for whose transportation only land
grant rates could be paid by disbursing officers, and accepted
payment of its bills on that basis without protest,
held
that, though the Comptroller's ruling was erroneous, the railroad
was bound by acquiescence, and could not recover the difference
between the amount received and the larger amount which it would
have been lawfully entitled to charge under its tariff. P.
268 U. S.
268.
2. But
aliter where the bills, though rendered at land
grant rates, bore a short form of protest; "Amounts claimed in this
bill accepted under protest," or a form more extended and
explanatory, since, by these, the government officers were
sufficiently notified that payment at the lower rates would not be
accepted in final settlement. P.
268 U. S.
268.
3. Where, however, the railroad rendered most of its bills with
indorsed protests, but a considerable number during the same period
without them, as to these latter, it was bound by its acceptance of
the land grant rates. P.
268 U. S.
270.
59 Ct.Cls. 36 reversed.
Appeal from a judgment of the Court of Claims rejecting the
appellant's claim for the difference between
Page 268 U. S. 264
amounts paid by the government for transportation at land grant
rates and the lawful tariff charges.
MR. JUSTICE SANFORD delivered the opinion of the Court.
The Southern Pacific Company, having carried certain persons as
passengers at the request of the government and received payment
for such transportation at land grant rates, brought this action to
recover the difference between the rates thus paid and the full
tariff rates. The Court of Claims, on its findings of fact, being
of opinion that the claimant, by its course of proceeding and
acceptance of the land grant rates, was precluded from the recovery
of the balance of the full tariff rates, entered judgment
dismissing the petition. 59 Ct.Cls. 36.
The facts found, shortly stated, are as follows: the claimant,
in 1911, became a party to the so-called "land grant equalization
agreements" with the Quartermaster General, by which it agreed
(subject to certain exceptions not here material) to transport
troops of the United States at the net rates effective over land
grant lines -- that is at fifty percent of the rates charged
private parties. [
Footnote 1]
Thereafter, between March 1, 1912, and June 18, 1916, [
Footnote 2] the claimant transported,
upon government requests, a number of applicants for enlistment in
the Army, discharged, retired, and furloughed soldiers, and
civilian employees in the War Department.
Page 268 U. S. 265
It had been previously ruled by the Comptroller of the Treasury
that such persons were to be regarded as troops of the United
States, and that their transportation could be paid for only at
land grant rates, and disbursing officers, as the claimant knew,
were authorized to make payments on that basis only. Because of
this ruling, the claimant presented its bills for all such
transportation on the form of voucher prescribed for transportation
at land grant rates, [
Footnote
3] in which it stated in appropriate columns the "gross amount"
of the regular fares, the "amount to be deducted on account of land
grant," and, in the final column, the "amount claimed" (the gross
amount less the land grant deduction), and certified the accounts
to be correct. All these vouchers were presented to the Disbursing
Quartermaster at San Francisco, and were paid by him in the amounts
claimed, and all these payments were accepted by the claimant.
Prior to January 1, 1914, the claimant, except in one instance,
accepted payment of these bills without protest or other
objection.
After January 1, 1914, however, there was written, typewritten,
or stamped by the claimant upon a part of the land grant vouchers,
before they were paid, a so-called short form of protest, reading
as follows: "Amounts claimed in this bill accepted under protest."
This form of protest was understood by the clerk who handled these
bills in the office of the Disbursing Quartermaster as being
"addressed to the matter of land grant rates," for the purpose of
reserving the claimant's right to present a further claim for full
commercial fares to the accounting officers or the courts. The
claimant used this form of protest on 201 vouchers between January
1 and October 1, 1914, [
Footnote
4] but 303 of the vouchers presented and paid during this
period bore no protest.
Page 268 U. S. 266
On October 1, 1914, the claimant began "systematically" to
endorse in typewriting on the land grant vouchers, before
presentment, a so-called long form of protest, reading as
follows:
"As U.S. government accounting officers claim they have no
authority to allow or pay for the transportation of discharged
soldiers more than the fares for troops of the U.S., such fares are
shown herein, but under protest and S. P. Co. for itself and
connecting carriers does not waive any of its rights to full
published tariff fares and any payment at any less amount will be
accepted as part payment only for the services performed."
"This form of protest was used on 516 vouchers between October
1, 1914 and June 18, 1916, [
Footnote 5] but 212 of the vouchers presented and paid
within this period bore no form of protest whatever."
The claimant brought the present action in March, 1918, shortly
before the decision in
United States v. Union Pacific
Railroad, 249 U. S. 354. In
that case, the railroad company, a party to the land grant
equalization agreement, having transported persons of all the
classes that are here in question except civilian employees, had
presented to the Auditor for the War Department claims for such
transportation at the full tariff rates, and the Auditor and
Comptroller, having successively refused to allow these claims at
more than the land grant rates, had then brought suit in the Court
of Claims to recover the full passenger fares. It was held by this
Court that such persons were not troops of the United States within
the meaning of the land grant acts and the equalization agreements,
and that the railroad company was entitled to recover the full
amount claimed. In the present case, the Court of Claims held that,
in the light of this decision, none of the classes of persons here
in question could be regarded as troops of the United States, and
recognized that the claimant would have been entitled
Page 268 U. S. 267
originally to compensation at the full passenger rates. This is
not questioned by the government, the sole contention being that,
as was further held by the Court of Claims, the action of the
claimant in voluntarily presenting its bills at the land grant
rates and accepting payment thereof precludes it from recovery of
the balance of the full rates to which it would otherwise have been
entitled.
The question when the substantive right to recover an amount
justly due from the government is lost through some act or omission
upon the part of the claimant was considered at length in
St.
Louis, Brownsville & Mexico Railway v. United States ante,
p.
268 U. S. 169, in
which the decisions bearing on this question were collated. It was
there said that this right
"can be lost only through some act or omission on the part of
the claimant which, under the rules of the common law as applied by
this Court to claims against the government, discharges the cause
of action. Acquiescence by the claimant in the payment by the
government of a smaller amount than is due will ordinarily effect
the discharge. Acquiescence can be established by showing conduct
before the payment which might have led the government to believe
that the amount allowed was all that was claimed, or that such
amount, if paid, would be received in full satisfaction of the
claim. Acquiescence can also be established by showing conduct
after the payment which might have led the government to believe
that the amount actually received was accepted in full satisfaction
of the original claim. But to constitute acquiescence within the
meaning of this rule, something more than acceptance of the smaller
sum without protest must be shown. There must have been some
conduct on the part of the creditor akin to abandonment or waiver,
or from which an estoppel may arise."
The defense of acquiescence by the acceptance of a smaller sum
than the actually
Page 268 U. S. 268
due, it was further pointed out, is not to be confused with the
defense "of accord and satisfaction or compromise of a disputed
claim," evidenced by a receipt in full or a release.
Manifestly there was here "no accord and satisfaction or
compromise of a disputed claim." The claimant, while presenting its
bills for transportation at the land grant rates and accepting
payment thereof, did not execute either a receipt in full for its
transportation charges or a release thereof. The crucial question,
then, is whether the conduct of the claimant with reference to the
acceptance of the land grant rates establishes an acquiescence in
the payment thereof, in the nature of an abandonment or waiver,
that operated as a discharge of its claim for the full passenger
rates. This is to be determined by the application of the rules
stated in
St. Louis, Brownsville & Mexico Railway v. United
States, supra.
1. 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.
Oregon-Washington Railroad v. United States, 255 U.
S. 339,
255 U. S. 347;
Western Pacific Railroad v. United States, 255 U.
S. 349,
255 U. S. 355;
Louisville & Nashville Railroad v. United States,
258 U. S. 374,
258 U. S. 375;
Louisville & Nashville Railroad v. United States,
267 U. S. 395;
St. Louis, Brownsville & Mexico Railway v. United States,
supra. This is not seriously questioned by the claimant.
2. The case is manifestly different as to those bills presented
on the land grant vouchers which bore either the short or long form
of "protest." While a "protest" has no
Page 268 U. S. 269
definite legal significance in connection with the receipt of
money, being ordinarily used in connection with the involuntary
payment of money under legal compulsion or duress, it it may
nevertheless be effective as an indication of nonacquiescence in
the receipt of the amount paid as a final settlement of the claim.
In the present case, it is clear that the use of these protests
upon the vouchers was reasonably adapted to lead the government
officials to believe that the amounts of the vouchers were not all
that was claimed, and such amounts were not accepted in full
satisfaction of the transportation claims. This was not only
brought to the attention of the disbursing officer in the first
instance, but later, in due course, to the attention of the
accounting officers by whom the payment of the vouchers was
approved. The clerk in the office of the Disbursing Quartermaster
who handled these bills understood that the short form of protest
was addressed to the matter of land grant rates, for the purpose of
reserving the claimants' right to present a further claim for full
commercial fares, and there is no suggestion that either the
Disbursing Quartermaster or the accounting officers understood that
the payment of the vouchers on which the protests were endorsed was
received in full settlement of the transportation claims.
We find no essential difference in this respect between the
short and long forms of protest. The short form gave notice that
the amounts claimed in the bills were "accepted under protest;" and
the long form gave notice that, by reason of the claim of the
government accounting officers, the fares were shown at land grant
rates, under protest, without waiver of the claimant's right to
full tariff fares, and that the payment of less than the full fares
would be accepted "as part payment only for the services
performed." And the fact that a preliminary reference was made
merely to the claim of the accounting officers as to discharged
soldiers did not destroy the effect
Page 268 U. S. 270
of the protest in its entirety as a notice that the land grant
rates were claimed and accepted in part payment only.
We conclude that the indorsement of these protests on the
vouchers sufficiently notified the government officers that the
payment of the land grant rates was not accepted in final
settlement of transportation claims, and that, as to such vouchers,
the government has not established an acquiescence in the payment
of the land grant rates which discharges the claims for the
remainder of the full tariff fares. And we are of opinion that the
claimant was not compelled, at its peril, to present its claims
originally for the full tariff rates, as was done in the
Union
Pacific case, which would have involved delay in the payment
of any part of its claims, 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.
3. A different question arises, however, as to those bills which
were presented on land grant vouchers after January 1, 1914, upon
which no protests were indorsed. It is perhaps true that the
claimant, although presenting its bills on land grant vouchers,
might have sufficiently preserved its right to full compensation by
a general notice, in advance, to the War Department that, in so
doing and in accepting payment on such vouchers at land grant
rates, it did not intend to waive its claims to the full tariff
rates, and reserved the right to present subsequently its claims
for the difference between the amounts paid and the full rates, and
that, in such case, it would not have been essential to the
claimant's right to full compensation that each specific bill
should be accompanied by a notice showing its nonacquiescence
therein as a final settlement. This, however, it did not do. It
gave no such general
Page 268 U. S. 271
notice, but adopted for the preservation of its rights the
method of endorsing its protests upon the separate vouchers. Having
adopted this method of procedure, it was compelled to follow it in
order to preserve its rights. Between January 1 and October 1,
1914, about three-fifths of the vouchers, and between October 1,
1914 and June 18, 1916, about two-sevenths, bore no protest. The
number is too great to be presumptively explained on the theory of
inadvertence and oversight. There is nothing in the findings of
fact to indicate that this was the case, and no explanation
whatever appears for the absence of the protests. Under these
circumstances, we think that, as to all the bills presented on land
grant vouchers after January 1, 1914, which bore no protest
whatever, the case is in the same situation as the bills which were
presented prior to that date without any protest, and that, for the
same reason, it must be held that the presentation of these
vouchers at the land grant rates and the acceptance of payment
thereof established an acquiescence on the part of the claimant
which discharged its claim for further compensation at the full
tariff rates.
The judgment of the Court of Claims is accordingly reversed, and
the cause remanded to that court for further proceedings in
conformity to this opinion.
Judgment reversed.
[
Footnote 1]
See United States v. Union Pacific Railroad,
249 U. S. 354,
note 1.
[
Footnote 2]
The date on which the so-called "interterritorial military
arrangement" became effective as to the claimant and the other
railroads.
[
Footnote 3]
See 14 Comp.Dec. 967.
[
Footnote 4]
Also on one previous voucher.
[
Footnote 5]
Also on four previous vouchers.