
    CHICAGO, BURLINGTON & QUINCY RAILROAD CO. v. THE UNITED STATES
    
    [No. C-28.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Bailroad transportation; accounting with Bailroad Administration; collection from participating carriers.- — Where plaintiff has been paid for Government transportation tlie amount sued for, thereafter said amount has been collected by the United States Bailroad Administration from other carriers participating in the movement, no charge has been raised by the Bailroad Administration against the plaintiff or any collection made, and there is no evidence of any demand by the said participating carriers upon the plaintiff or settlement between them, the plaintiff is not entitled to recover.
    
      
      The Reporter’s statement of the case:
    
      Mr. Lcvwrenee H. (Jake for the plaintiff. Britton c& Gray were on the brief.
    
      Mr. Lisle A. Smith, with whom was Mr. Assistant Attorney General Herman J. GaTloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff, a corporation, is a common carrier by railroad of freight and passengers.
    II. Before and at the time of the transportation hereinafter mentioned the common carriers of the United States generally, including the plaintiff, severally agreed with the Quartermaster General of the United States Army that they would accept for the transportation of Government troops and property the amounts that would be payable by the Government, calculated by way of the cheapest route between the same terminal points, via a usually traveled route for military traffic, from a lawful rate filed with the Interstate Commerce Commission as applying from point of origin to destination via such route at time of movement.
    III. During the period beginning April 6, 1917, and ending October 5, 1917, inclusive, the plaintiff participated in various movements of freight and passengers for the United States Government, upon Government bills of lading and transportation requests, for which transportation the plaintiff, as the final carrier of freight and the initial carrier of passengers, rendered bills and received payment through the accounting and disbursing officers of the Government, in accordance with the terms of the said equalization agreements above mentioned. A part of the land-grant deductions taken into account in determining the amount due in each instance were made on the basis of a calculation of land-grant deductions and adjustments by way of certain portions of the Missouri Pacific system, over which land-grant deductions of 100 per cent were proper under the granting act of July 28, 1866, chapter 300. Statements of the items and details of such transportation are annexed to plaintiff’s original and amended petitions as Exhibits A and B and made a part hereof by reference.
    
      IY. April 6, 1917, the Congress of the United States, by joint resolution, declared the existence of a state of war between the United States and the Imperial German Government.
    Y. October 6, 1917, the Congress enacted, as a part of the act approved October 6, 1917, chapter 79 (40 Stat. 361), the following:
    “ Land-grant railroads organized under the act of July 28, 1866, chapter 300, shall receive the same compensation for transportation during the existing war emergency of property and troops of the United States as may be paid to land-grant railroads, organized under the land-grant act of March 3, 1863, and the act of July 27, 1866, chapter 278, for such transportation during said emergency: Provided, That this paragraph shall not be construed as changing in any other way or for any other period of time the rights and duties of the land-grant railroads first above mentioned.”
    VI. On transportation requests WQ — 43853, 554751, 35368, 258075, 717725, 591607, 553863, 553861, listed in Exhibit A to the petition (omitting transportation request WQ— 258072), the difference between the amount paid on the 100 per cent land-grant basis as stated in Finding III, sufra, and the amount which would have been paid on the basis of a 50 per cent land-grant deduction, on account of the equalization with the Missouri Pacific, is $3,453.83. That difference has not been paid, through the accounting or disbursing officers of the Government, to the plaintiff or any of the other carriers participating in the movements.
    VII. On the bills of lading listed in Exhibit B to the petition, the difference between the amount paid the plaintiff on the 100 per cent land-grant basis, as stated in Finding III, supra, and the amount to which it would have been entitled on the basis of a 50 per cent land-grant deduction, on account of the equalization with the Missouri Pacific, is $480.26, Avhich has not been paid, through the accounting or disbursing officers of the Government, to the plaintiff or any of the other participating carriers.
    VIII. On transportation request WQ — 258072, the plaintiff billed and was paid by the disbursing officer $10,636.50, being 525 men at a fare of $20.26 per capita. This exceeded a fare of $.16.00 calculated by way of the said Missouri Pacific system, with deductions of 100 per cent proper under the granting act, and which plaintiff, under the equalization agreement, had agreed to accept. Accordingly thereafter the Auditor for the War Department deducted the sum of $2,236.50 from bills of the United States Railroad Administration for transportation rendered the Government during Federal control, to meet the overpayment, being the difference between the fares of $20.26 and $16.00 for 525 men.
    The United States Railroad Administration thereupon collected the said sum of $2,236.50 in March, 1919, from carriers participating in the movement, and as follows:
    From St. Louis & San Francisco Ry. Co_$1,223.25
    From St. Louis, San Francisco & Texas Ry. Co_ 299. 25
    From International & Great Northern Ry. Oo_ 640. 50
    From Galveston, Harrisburg & San Antonio R. R. Go_ 73. 50
    2, 236. 50
    making no collection from the plaintiff and charging it in no way. There is no evidence in the case of payment by plaintiff to these carriers or of any settlement between the plaintiff and the said participating carriers.
    The correct net fare on the basis of 50 instead of 100 per cent land-grant deduction is $20.22, and the difference between said fare and $16.00, for 525 men, is $2,215.50.
    The court decided that plaintiff was entitled to recover $3,913.09.
    
      
       Writ of certiorari denied.
    
   Campbell, Chief Justice,

delivered the opinion of the court:

There are three items involved in the claim in this case, and as to two of them, $3,453.83 and $480.26, with a deduction to be noted, the plaintiff is clearly entitled to recover. These two items represent the difference between 100 per cent land-grant deduction over part of the route and the 50 per cent land-grant deduction which was applicable under the act of October 6, 1917 (40 Stat. 361). This difference has not been paid. The third item, amounting to $2,215.50, presents a different question. The petition alleges that the amount claimed in the three items “ has not been paid ”, to plaintiff. The stipulation shows that plaintiff presented its bill for $10,636.50 and was paid the full amount. The correct amount on the- basis of 50 per cent land-grant deduction was $10,615.50, or $21.00 less than was actually paid to and received by plaintiff. The Auditor for the War Department reduced the per capita fares and thereby reduced the bill by $2,236.50. This sum was then deducted from accounts due the United States Eailroad Administration for transportation rendered during Federal control.

The matter then stood as follows: Plaintiff had been paid in full, including the item of $2,236.50. The auditor had deducted this amount from the Eailroad Administration bills. The Eailroad Administration made no collection from plaintiff and made no charge against plaintiff. It collected from or charged the sum deducted by the auditor to four other carriers, in varying amounts, who participated in the movement in question. It does not appear from the evidence that plaintiff paid the participating carriers any part of the sum it received from the disbursing officer, which amount, as already said, was the entire bill. Nor does it appear that these “ participating carriers ” have made any demand on plaintiff. For aught that appears in evidence the plaintiff is still in possession of the sum paid to it upon the rendition of its original bill, which sum includes the land-grant based upon 50 per cent and not 100 per cent. In this condition of the record plaintiff is not entitled to recover the item of $2,215.50.

It is established by the decisions of the Supreme Court and of this court that where a railroad company has been paid its bills, and upon the theory that the payments were excessive, deductions to cover the excess have been made by the accounting officers from accounts due the Eailroad Administration during Federal control, the railroad company can sue and recover for these improper deductions after it has accounted to the Railroad Administration in settlement. See Reading Company et al. case, 270 U. S. 320, 60 C. Cls. 131. But ‘the instant case is not brought within the principle of these decided cases. As already stated, plaintiff has been paid, and to allow a recovery upon the present record would amount to a double payment. 'This question was settled by this court in Southern Pacific Co. case, No. 34717, decided December 6,1926, 62 C. Cls. 649. Commenting on the facts developed in that case, we said:

“For some unexplained reason, this sum * * * was ■charged on the books of the Railroad Administration to two ■other companies, one of these items to each. Without showing that it has accounted for them to the Railroad Administration the plaintiff can not recover the amount. Its bill was paid originally in full, and if the Railroad Administration has not required reimbursement on account of the deductions it is plain that plaintiff has not lost anything. 'To the extent it has made such reimbursement or accounting it is entitled to recover.”

We are now asked to go even further than the plaintiff asked in the Southern Pacific Go. case. The court can not revise the settlements between the terminal or the initial carrier on the one hand and its connecting or participating carriers on the other hand so far as their relative rights are concerned, but it can and should say to a plaintiff that it may not receive the entire amount of its bill with proper land-grant deductions and while still holding the amount so received sue to recover a charge made by the Railroad Administration against several participating carriers. We have, therefore, not only a failure of proof upon the only phase presented by the petition, which is that the plaintiff is suing for land-grant deductions allowed by the act of October 6, 1917 (see Baird Oase, 131 U. S., “Appendix ” CYI; 8 C. Cls. 13), but also there is a failure of proof of any accounting by plaintiff to either the Railroad Administration or its connecting carriers for the amount of $2,236.50 received by it.

The plaintiff is entitled to recover the two items first above mentioned, less $21.00 overpaid to it on the third item. As to the amount claimed on the third item, $2,215.50, the petition should be dismissed. And it is so ordered.

Moss, Judge; Geaham, Judge; Hat, Judge; and Booth, Judge, concur.  