
    THE MOBILE AND OHIO RAILROAD COMPANY v. THE UNITED STATES.
    [No. 23607.
    Decided February 27, 1905.]
    
      On the Proofs.
    
    The Missouri Pacific Railroad Company contracts to convey troops and supplies from Jefferson Barracks, Mo., to points in Alabama and Florida at rates specified. The claimant’s road is a link in the line between the points named, and a portion of . the road is a laud-grant road. For the transportation over the claimant’s road it is paid by the Missouri Pacific, but at ■ what rate does not appear. If 161 miles of its road was reckoned in mistake of fact as land aided when it was not, the claimant received at least $3,000 less than it was entitled to; but no privity appears between the claimant and the defendants.
    I. Where a railroad agrees to transport troops, etc., over its own and other railroad lines to a point designated, and does so, and pays the intermediate lines for their service, no privity exists between the intermediate lines and the United States, though a part of the service may have been performed on land-grant roads.
    II. Where no privity exists between the United States and a railroad, the latter can not maintain an action because a part of its line was reckoned as land-grant aided when in fact it was not, even though the United States got the benefit of the mistake.
    
      The Reporters’ statement of the case:
    The following are the facts of the case found by the court:
    I. The claimant herein, a corporation, was organized under the Days of the State of Alabama in the year 1848, and, as such corporation, oaviis and operates a railroad from Mobile, Ala., through the States of Alabama, Mississippi, Tennessee, and Kentucky, to Cairo, Ill., a distance of 495.88 miles, with a number of branches also in Alabama, Mississippi, and Tennessee.
    Of the mileage of said road, 161.10 miles was constructed through Tennessee and Kentucky without the aid of land from the United States, while of the road constructed through Alabama and Mississippi, land was granted upon the basis of mileage by the act of 1850 to the States of Alabama and Mississippi, which was by said States transferred to the claimant company in aid of the construction thereof through said States of Alabama and Mississippi.
    • II. At the beginning of and during the late war with Spain it was the rule of the TVar Department to obtain on all transportation for troops and freight the lowest rates available, and for this purpose the various quartermasters west and northwest of the Ohio and Mississippi rivers invited the railroad companies reaching their respective posts to make proposals for such transportation to the various points south and east of said rivers.
    It was at the time and prior thereto known to the railroads submitting bids for such transportation that if their bids were not as low as the regular published tariff rates, less proper land-grant deductions, the accounting officers of the Treasury Department would disregard such bids and apply the land-grant rates, and that in accepting bids for such transportation the quartermasters would invariably reserve the right to apply lawful land-grant rates to such transportation if found to be lower than the rates bid by such roads.
    III. It does not appear that the claimant company was invited to or that it did make any proposal whatever for the transportation of troops. The transportation of troops by the claimant company for which additional compensation is claimed herein was made under special rates agreed upon between the various quartermasters of the United States and the Missouri .Pacific Railroad Company and the Chicago, St. Paul, Minneapolis, and Omaha Railway Company, each of which companies submitted bids for the transportation of troops over their respective roads and the several lines connecting therewith, including the line of the claimant company from Jefferson Barracks, Mo., Fort Crook, Nebr., Fort Leavenworth, Kans., Springfield, Ill., and Camp Douglas, Wis., to points in Florida and Alabama, at net cash rates not subject to land-grant deductions, which bids and each of them were lower than the claimant’s published tariff rates with proper land-grant deductions. The bids so made, and each of them, were accepted by the various quartermasters on behalf of the United States for the transportation herein claimed, and the troops were accordingly transported over said lines, for which the price agreed upon was paid to the bidding roads and was accepted by them without protest or objection. But under what circumstances and conditions the claimant company transported said troops does not appear, other than as a connecting line as aforesaid.
    IV. What proportion of the rate so agreed upon was paid by the bidding roads to the claimant company herein does not appear, nor does it appear whether the roads so bidding treated the 161.10 miles of the claimant company through Tennessee and Kentucky as land aided.
    If the claimant company herein is not bound by the bid so agreed upon, and said 161.10 miles were reckoned in said bids as land aided, and payment made accordingly, then the claimant company received at least $3,000 less than it would have been entitled to had said 161.10 miles been reckoned as nonland aided.
    
      Mr. Benjamin Garter for the claimant.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claimant herein, a corporation, by its action in effect seeks to avoid the binding force of the several executed contracts entered into between the various quartermasters of the United States and the Missouri Pacific Railroad Company and the Chicago, St. Paul, Minneapolis and Omaha Railway Company for the transportation of troops of the United States over their respective roads and the several lines connecting therewith, including the line of the claimant company, from various points west and northwest to points in Alabama and Florida, and to recover, in addition to whatever sum may have been paid to or may be due the claimant from such contracting roads, the further sum of morei than $3,000.

The findings disclose that by the several contracts so entered into the contracting roads agreed, on behalf of themselves and the several roads connecting with their respective lines, to transport troops of the United States over their own and connecting lines at a certain rate, which rate was less than the regular tariff rates with proper land-grant deductions ; and in accordance with the contracts so entered into the troops were transported over said roads, including the claimant’s, and the contract price agreed upon was paid by the United States to the contracting roads; but under what terms the troops were transported by the claimant company does not appear, nor is it material in this case, since the rate agreed upon was less than regular tariff rates with proper land-grant deductions, and no privity is shown to exist between the claimant and the United States. The petition is dismissed.  