
    BALTIMORE & OHIO RAILROAD COMPANY v. THE UNITED STATES
    
    [No. B-87.
    Decided February 16, 1925]
    
      On the Proofs
    
    
      Railroad, rates; agreement; free baggage. — See Missouri Paeifie R. R. ease, 56 0. Ols. 341.
    
      Same; Railroad Administration; final settlements. — See Reading Co., ante, p. 131; Southern Rg. ease, ante, p. 156.
    
      The BeportePs statement of the case:
    
      Messrs. John F. McGarro'n and George E. Hamilton for-the plaintiff.
    
      Messrs. Lisle A. Smith and A. A. McLaughlin, with whom was Mr. Assistant Attorney Generad Bobert H. Lovett, for the defendant. .
    The following are the facts as found by the court:
    I. The plaintiff is a corporation duly incorporated under the laws of the State of Maryland.
    At the times of the different transactions hereinafter set forth in these findings of fact, except the period of Federal control from January 1, 1918, to March 1, 1920, inclusive, the plaintiff operated, and still operates a system of railways in the State of Maryland and other States, doing business as a carrier- of passengers and freight for hire and reward under tariffs duly filed with the Interstate Commerce Commission by it and by its connecting lines, with its concurrence, and published as provided by law.
    
      • II.' When the troops and Army impedimenta hereinafter described were transported there were in force on all the lines which furnished such. transportation special baggage tariffs ‘which covered the territories through which said troops and impedimenta were moved. Said special baggage tariffs provided, in substance and effect,' the terms and conditions under which associated travelers traveling on one ticket might become entitled to a baggage car free for the transportation of certain of their effects at the rate of one car free to each (generally) 25 passengers paying full fares.
    III. With respect to the articles pertaining to and accompanying bodies of troops, and composed of tents, ambulances, wagons, caissons, ammunition, tools, and other-articles peculiar to military impedimenta and sometimes called company or battalion or regimental “ property ” or “ camp equipment ” it has always been claimed by carriers that such shipments were essentially freight and were so to be treated in settlements for their transportation.
    For many years the Quartermaster' General has issued periodically a publication entitled “Manual for Quartermaster Corps,” and the edition thereof published and made effective in December, 1916, and still in force and effect contains paragraphs 3391, 3441, 3443, 3445, 3453, 3494, 3498, and 3500, which recognize the distinction between company property or Army impedimenta on the one hand and the baggage entitled to free transportation on the other hand. A decision of the comptroller of June 18, 1918 (24 Comp. Dec. 774), was to the effect that, under the provisions for carriers’ baggage tariffs the Government was entitled to one car free for every 25 passengers in the accompanying passenger movement. Prior to that decision the Government paid for such impedimenta as freight.
    IY. Since the decision of the comptroller of June 18, 1918, accounting officers of the Government have made settlements upon the basis that the United States was entitled to one baggage car free for the transportation of its camp equipment and company property for every 25 officers and enlisted men traveling.
    
      Y. Prior to January 1, 1917, the plaintiff and other lines, parties to the interterritorial military arrangements which became effective on that date, were parties to agreements, known as military agreements, between authorized representatives of the carriers and authorized officers of the War and Navy Departments, which were for the most part similar to and superseded by the later arrangements.
    The said interterritorial military arrangement or contract was entered into between the United States Army, Navy, and Marin© Corps and the carriers in the territories of the Central Passenger Association, New England Passenger Association, Southeastern Passenger Association, Southwestern Passenger Association, Trans-Continental Passenger Association, Trunk Line Association, and Western Passenger Association, to become effective January 1, 1917, and to supersede and cancel all previous interterritorial arrangements between the same parties, the material and relevant parts of which are as follows:
    
      “Traffic covered by this arrangement.- — -The net fares; allowances, and routes in connection therewith authorized hereunder are applicable exclusively for the transportation of officers, enlisted men, and others connected with the United States Army, United States Navy, and United States Marine Corps for whom the United States Government is lawfully entitled thereto, and when traveling on transportation requests of the issues of the United States Army, United States Navy, and United States Marine Corps and at the United States Government expense only.
    “ Net fares and allowances. — :(1) (a) The fares applicable under this arrangement will be the lawful commercial fares as on file with the Interstate Commerce Commission from starting point to destination at time of movement (see exceptions, Sec. V), less lawful land-grant deductions properly established, less 5 per cent (5%), the 5 per cent allowance not to exceed the maximum allowances or exceptions as specified in Section VI. Government fares so established will apply to all military traffic, as described in Section III, including special train and special car movements, as well as individual and party movements (see Sec. XI).
    
      “(b) Proportions will not be used in any case in the construction of fares.
    *1* $ Í5 ‡
    “When special cars or special trains are furnished hereunder, not less than the minimum, number of fares for such special cars or special trains will be required.
    * * * * 4: £C xy
    “Baggage.— (1) One hundred and fifty (150) pounds of personal effects, properly checkable as baggage under the •tariff of the initial carrier, will be transported without charge for each person. Personal baggage in excess of the free allowance stated, when provision for the transportation of the excess baggage is specially made in United States Army, Navy, or Marine Corps transportation requests and is paid for by the United States Government, will be charged for at the regular excess baggage rate, based upon the net individual fare. When provision is not made in the transportation request for transportation of excess baggage, collection will be made for the traveler at the regular commercial rate for weight in excess of the free allowance stated. Excess-baggage charges will not be subject to allowances applicable in connection with the fares for tickets under this arrangement. Baggage regulations in other respects than above will be in accordance with the tariff of the initial carrier checking the baggage in each case.
    “(2) Company, battalion, regimental, or Government property is not included in the above.
    $ ‡ $ “ XX
    
      “Termination of a/n°a,ngement. — It is understood that this arrangement may be terminated at the pleasure of the United States Army, United States Navy, and United States Marine Corps, independently of each other, and the withdrawal from the arrangement of one of these branches of the Government will in no way affect the operation of the arrangement as to the other branches of the Government electing to continue it, the reservation being made, however, that the carriers may withdraw from the arrangement at their option.”
    
      VI. The interterritorial military arrangement effective July 1, 1916, which was superseded by the similar agreement effective January 1, 1917, referred to in Paragraph Y, was indorsed by the comptroller in a letter to the Secretary of War, dated May 20, 1916, which, among other things, contained the following:
    “ 9. This agreement is considered ■ advantageous to the Government for the following reasons: (a) It will result in a saving of Government funds. (5) It will procure cooperation on the part of the railroads, (c) It will facilitate the settlement of accounts.”
    On March 3, 1917, the Quartermaster General, with the approval of the Secretary of War, ordered copies of said interterritorial military arrangements to be forwarded to different officers throughout the country concerned with the movement of troops, with the statement that “the new arrangements are along the same lines as the old ones; some disputed points have been cleared up and are therefore published in the new arrangement.”
    On September 15, 1917, all department, depot, and camp quartermasters were notified by the Quartermaster General that :
    “ 1. It is desired that all shipping quartermasters be instructed that camp equipment and impedimenta will not be carried as checkable baggage, and that checkable baggage includes only wearing apparel and related articles ordinarily carried in a trunk by a commercial traveler.”
    Copies of said interterritorial military arrangement were distributed to all quartermasters between February 28, 1917, and March 3,1917.
    VII. The said interterritorial military arrangement was in full force and effect asíate as May 20, 1920. Under the terms of said arrangement the Government has paid for transportation at rates substantially 5 per centum less than it otherwise would have paid.
    VIII. At various times during the year 1917 plaintiff transported a number of movements of United States troops to terminal points on plaintiff’s lines. The troops were transported on regular transportation requests at rates substantially 5 per cent less than the regular tariff rates, and the Army impedimenta was moved as freight on bills of lading issued by the Government.
    IX. For the transportation service described in Finding VIII, the plaintiff presented its bills No. 83805 for $25.77, No. 24013 for $104.60, and No. 35680 for $729.91, based on legal tariffs in force on its lines, to the accounting officers of the Treasury for direct settlement. The Auditor for the War Department on May 7, 1918, disallowed the entire bill No. 33805 for $25.77 upon the ground'that under the ruling of the comptroller the Government was entitled under certain tariffs in force on its lines to have had its military impedimenta moved free at the rate of one baggage car for every group of 25 men in the troop movement. For the samé reason the auditor, on June 26, 1918, disallowed $709.91 of bill No. 35680 for $729.90. The auditor on May 9, 1918, disallowed $16.95 of bill No. 34013 for $104.60 upon the ground that the plaintiff was entitled to have had the baggage of 2 officers and 23 enlisted men moved free under the agreement to move 150 pounds of personal baggage free for each person in a troop movement set out in Finding Y. The total disallowance less said item of $16.95 amounted to $735.68.
    X. At various times during the years 1916 and 1917 the plaintiff and its connecting carriers transported United States troops with accompanying military impedimenta to terminal points on plaintiff’s lines. The troops were moved on Government transportation requests and the military impedimenta on Government bills of lading as freight. For such services the plaintiff presented its corporate bills Nos. 34216D, 34854, 32815, 33808, 33206, 3485-A, 34871, 34009, and 34872, amounting to $8,074.63, to the proper disbursing quartermaster for payment. These bills were paid by the disbursing officer as presented. Nos. 33206, for $273.88, was paid on November 1, 1917, and 34216, for $463.20, was paid on December 26, 1917 (a total of $737.08), to the plaintiff; the remaining bills, amounting to $7,337.55, were paid by said disbursing officer from January 7, 1918, to July 16, 1918, inclusive, to the United States Bailroad Administration and credited by the director general to the plaintiff through, the account “B. & O. B. B. Co. — Assets 12/31/17 collected,” as provided by General Order No. 17. The accounting officers in auditing tlie accounts of the said disbursing officer disallowed $6,315.45 as overpayment by him' on said corporate bills, and from Railroad Administration bills Nos. 812-1901, 96-1274, 88-1147, 98-1175, 9T-1487, 98-1094, 98-1154, 97-1142, 88-1392 deducted from March 12, 1920, to July 16, 1920, said $6,315.45. Of this amount the whole payment to plaintiff on the corporate bills, $737.08, was.deducted as overpayment and the balance, $5,578.37, was deducted on account of alleged overpayments to the Railroad Administration on corporate bills. The amount so deducted from Railroad Administration bills, $6,315.45, was charged on Its books in an appropriate account against the plaintiff, which in turn credited said amount on its books to the Railroad Administration ■ and charged the same in a- suspense account against the War Department to await action by the auditor or the Court of Claims. During December, 1921, the plaintiff paid the amount so deducted, $6,315.45, into its trustee account to the credit of the Director General- of Railroads.
    General Order No. 17 is attached to these findings as Appendix A, and is made part hereof by reference.
    -XI. The trustee account was created by General Order No. 68, issued February 24,1920, to take effect at the termination of Federal control, at 12 o’clock midnight, February 29,1920. By this order the different railroads that had been under Federal control were made trustees of the United States Railroad Administration to collect all of its unpaid bills and to pay all of its outstanding liabilities, and generally to wind úp all of its unfinished transportation business. All Federal cash pertaining to the transportation business was turned over to the railroads to be carried in this account. Any moneys erroneously paid into the trustee account by deposit in a bank where such account was kept could be withdrawn by a railroad company making such deposit, with the consent of the Director General of Railroads. General Order No. 68 is attached to the findings as Appendix B, and is made part of -this finding by reference thereto.
    XII. There was a final settlement agreement entered into between the plaintiff and the Director General of Railroads, dated July 27, 1922, by the second exception to which the items contained in the trustee account were excepted as follows: “This settlement does not include or affect any-moneys or assets of the director general turned , over to the company pursuant to General Order No. 68, the account created by this order to he adjusted as.though this agreement had not been made.”
    The final settlement agreement is attached to these findings as Appendix C and is made part hereof by reference.
    XIII. In pursuance of the authority contained in section 1 of the act of March 21, 1918, 40 Stat. 451 — 453, known as the “ Federal railroad control act,” the Director General of Railroads, on June 24, 1919, entered into an agreement with the Baltimore & Ohio Railroad Company and its affiliated companies. A copy of the said agreement between the Director General of Railroads and the Baltimore & Ohio Railroad Company and its affiliated companies is made part of this-finding by reference thereto as-Appendix D.
    The court decided that plaintiff was entitled to recover.
    
      
       Appealed.
    
   MEMORANDUM BY THE COURT

The item mentioned in Finding IX is controlled by the decision in the case of the Missouri Pacific R. R. Co., 56 C. Cls. 341. The other items of recovery are controlled by the late decisions in the cases of the Reading Company, ante, p. 131, and the Southern Ry. Co., ante, p. 156.  