Reporter's Statement of the Case

IV. On March 18, 1911, the plaintiff company, together with the railroad companies generally of the United States, at differing dates, entered into a land-grant equalization agreement with the Quartermaster General of the Army, still in force at the time of the transportation herein involved, in which, under the heading "Freight Traffic Agreement," it was provided as follows:

"1. The carriers shown herein agree, subject to the exception specifically stated below and subject also to the exceptions filed by each individual line forming part of a through route, to accept for the transportation of property moved by the Quartermaster Corps, United States Army, and for which the United States Government is lawfully entitled to reduced rates over land-grant roads, the lowest net rates lawfully available, as derived through deductions account land-grant distance from a lawful rate filed with the Interstate Commerce Commission applying from point of origin to destination at time of movement."

The carriers in southeastern territory, including the plaintiff and other lines concerned in the freight transactions involved in this claim, were parties to the land-grant equalization agreement, but did not file any exceptions to the same against equalizing with any lawful rates via Chicago and Cairo, Ill. The eastern lines with which New York and New Jersey shipments here concerned originated had filed exceptions against equalizing, on traffic for southeastern points, with the land grant between Chicago and Cairo.

Paragraph 3 of Section I of the agreement, under the heading General Instructions, was as follows:

"3. Carriers in trunk line and New England territories (i. e., east of Buffalo, N. Y., Pittsburgh, Pa., Wheeling and Charleston, W. Va., and north of the Virgina State line) do not participate in land-grant deductions on freight traffic, but such deductions are absorbed by their southern or western connections. Freight traffic can, therefore, be routed over any of the lines in trunk line and New England territories provided routing south or west thereof is in connection with carriers shown as agreement lines herein."

The Seaboard Air Line Railway, which was the initial and contracting carrier in the movements here in question, is shown by the Manual of the Quartermaster Corps, volume 2, Appendix, to have joined in the equalization agree

Reporter's Statement of the Case

ment above referred to on January 18, 1911, but it is shown by the testimony, and so found, that on January 18, 1911, the Seaboard Air Line Railway transmitted to the Quartermaster General an agreement to equalize, as follows:

The QUARTERMASTER GENERAL, U. S. ARMY,

Washington, D. C.

SIR: The Seaboard Air Line Ry., by its authorized representatives, hereby agree to accept for the transportation of U. S. Government passengers and freight, moved by the Quartermaster's Department, U. S. Army, the net cash rates established via the longest land-grant mileage from point of origin to destination over usually traveled routes in connection with published tariff rates legally filed with the Interstate Commerce Commission.

This agreement to remain effective during the calender year ending December 31, 1911, and thereafter from year to year unless the carrier files notice of withdrawal with the Quartermaster General of the Army at least sixty (60) days prior to the beginning of any calendar year.

SEABOARD AIR LINE RY.,

By L. E. CHALENOR,

G. F. Agt., Representative Freight Department. (To be signed in duplicate.)

War Department, Q. M. G. O. No. 280513.

It does not appear that the Seaboard Air Line Railway had given any notice of withdrawal from this agreement before the dates of the several shipments in question.

V. Plaintiff being charged with the collection of compensation for the shipments in question, its proper officers prepared its bills upon forms prescribed for that purpose and presented the same for payment to proper disbursing officers. The bills were stated by plaintiff in accordance with freight tariffs and classifications filed herein and contended by it to be applicable thereto. As hereinafter shown a part of the said bills were paid by the disbursing officer as billed and the others as unpaid claims were forwarded to the Auditor for the War Department for his direct settlement.

VI. From plaintiff's original bill of particulars, aggregating $57,268.49, two items of $2,903.15 and $1.04 were eliminated when an amended bill was filed, aggregating $54,364.30.

Reporter's Statement of the Case

Bills 5850-1, 5850-2, 5850-3, 5850-4, 5850-5, 5850-7, and 5850-8, aggregating $22,998.10, are withdrawn by plaintiff. VII. Bills Nos. 5815-10 for $657.63, 5815-11 for $1,845.07, 5815-12 for $4,488.59, 5850-261⁄2 for $64.07, 5995-100 for $5,369.40, and 6127-14 for $2,487.94, aggregating $14,912.70, were paid by a disbursing officer as billed by plaintiff. The remaining bills as unpaid claims were forwarded by the disbursing officer to the Auditor for the War Department for direct settlement. The total of $5,433.47 claimed on bills Nos. 5850-261⁄2 and 5995-100 was paid directly to plaintiff prior to January 1, 1918, when the Government took control of the railroads, and the total of $9,479.23 claimed on the remaining bills was paid directly to the Director General of Railroads as plaintiff's agent during the period of such Federal control.

The Auditor for the War Department took exceptions to the payments which had been made by the disbursing officer on the above bills for the reason that military impedimenta, camp equipage, etc., should have been transported free of charge on basis of one carload free for each 25 men in the movement. The disbursing officer called upon plaintiff to refund $14,848.63 on account of said sums so held to have been improperly paid, which plaintiff refused to do; and thereafter, and after plaintiff's railroad had been taken and was being operated by the United States, the auditor deducted said amount from certain several bills of the United States Railroad Administration not otherwise involved herein.

Of said sums so deducted the plaintiff was entitled to be paid $13,173.71.

VIII. Defendant admits that upon bills Nos. 5612-27, 5815-9a, 5815-10, 5815-11, 5850-23, 5850-24, 5850-26, 5850-262, 5850-27, 5850-33, 5884-43, 5951-18, 5995-11, 5995–51, 6033–2, and 6209-58 there was due plaintiff a total of $3,759.50.

Of the above bills, 5815-10, $657.63, and 5815-11, $1,845.07, are included in those paid by the disbursing officer and going to make up the sum of $14,848.63 referred to in Finding VII, and bill 5850-23, for $156.82, was paid by an appropria

Reporter's Statement of the Case

tion by Congress of $129.31, which was paid to and accepted by the plaintiff, the sum of which bills deducted from the above aggregate leaves of the total the sum of $1,099.98 as unpaid.

IX. Upon all other bills exceptions are taken by the defendant to the amounts claimed, predicated on difference as to applicable rates and to some extent on contention by the plaintiff that equalizing land-grant rates applied by the defendant are not applicable because not constructed over a usually traveled route between the points of origin and destination. Said bills are set out by number in the table following, and each numbered bill is followed in separate columns by the "amount claimed," the "amount conceded by defendant," the "difference," and in the last column an "x" when the difference is conceded by the plaintiff, the x" being followed by the amount conceded by the plaintiff if a part only of the difference is conceded. For convenience of reference the items are numbered serially.

X

Items 1, 6, and 12, deducted above, are three of the items included in the deduction made from bills of the Railroad Administration and are included in Finding VII.

X. The total amount of land grant in dispute is $3,937.74, arising on shipments from New York and New Jersey points to Anniston, Ala., as to which an equalizing rate via Chicago and Cairo was applied.

Reporter's Statement of the Case

XI. Upon the institution of Federal control of railroads the Director General, under authority vested in him by the act of Congress approved March 21, 1918 (40 Stat. 451), and in pursuance of instructions and notices issued by the War and Treasury Departments and by himself and by agreement with plaintiff in a form prescribed by him, took into possession, beside plaintiff's physical properties, cash in hands of its station agents, and its uncollected bills for services which it had rendered to the date of the commencement of said control; and thereafter said Director General, to the extent herein narrated, collected such bills as plaintiff had against the United States for transportation performed and paid such charges as were due from plaintiff to the United States.

XII. During the Federal control of railroads the Director General, in the operation of plaintiff's lines, performed much service over said lines for the War Department, for which his bills were duly rendered. Before settlement for such services the Auditor for the War Department deducted from the bills of the Director General various sums to the aggregate amount of $14,912.70, being the amounts set out in Finding VII, held to have been wrongfully paid under the free baggage car rule. The department was given credit at the time payments were made on the Director General's books for the amount paid on his bills, and the amounts unpaid by reason of said deductions remained a charge on his books against the department.

In August, 1920, a settlement for services rendered was had as between the Auditor for the War Department and the Director General of Railroads and a large sum was paid the Director General, but the disallowance of said amounts paid on plaintiff's bills as aforesaid still stood and that amount was not included in said settlement.

XIII. In June, 1920, the plaintiff, in keeping the Director General's books of account, charged itself in the amount of $7,857.34 in an account styled "L. & N. Railroad CompanyFederal assets collected," on account of deductions described which had been made from bills of the Director General. In December, 1920, the plaintiff, in an account styled "L. & N. Railroad Company-Corporate Transactions," charged