
    CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. v. THE UNITED STATES
    
    [No. C-910.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Raih'oad transportation; accounting with Railroad Administration; charge against other carriers. — Where sums erroneously claimed by the accounting officer to have been overpaid the plaintiff are charged by the Railroad Administration to carriers not shown to have participated in the transportation involved and are not refunded by the plaintiff, the plaintiff can not recover.
    
      
      The Reporter's statement of the case:
    
      Mr. Lawrence FI. Cake for the plaintiff. Britton <& Gray were on the brief.
    
      Messrs. Perry W. Howard and Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a corporation and a common carrier by railroad of freight and passengers.
    II. At the time of the service hereinafter mentioned the plaintiff and its connections had entered into certain “ equalization ” agreements to accept the lowest net fares as computed via competing land-grant routes. Circular 15, Quartermaster General, May 18,1922.
    III. During the period beginning April 6, 1917, and ending October 5,1917, inclusive, the plaintiff, as initial carrier, upon request of defendant’s authorized officers, transported certain troops of the United States, and the defendant paid the plaintiff the charges therefor due under the said “ equalization ” agreements from point of origin to the final destination on its connecting lines.
    In calculating the amounts due there were applied the net fares computed 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.
    IV. With respect to all of the said transportation the total difference between the amount paid to the plaintiff on the 100 per cent land-grant basis, as stated in Finding III, and the amount to which it would have been entitled according to the said “ equalization ” agreements, with the said portions of the Missouri Pacific system subject to land-grant deductions of 50 per cent (act of October 6, 1917), is $21,166.35.
    V. (1) With respect to a part of said transportation the Auditor for the War Department, claiming that the plaintiff had been overpaid $10,731.51 thereon, deducted that amount in September and October, 1919, from certain unsettled accounts of the United States Railroad Administration.
    
      (2) A portion of this amount, $5,643.33, was paid by the plaintiff to the Eailroad Administration in final settlement therewith.
    (3) The balance of the deduction, $5,088.18, has not been paid by the plaintiff to the Eailroad Administration, or to the defendant, but was charged back through Federal revenue accounts in January, 1920, to the other Federal lines interested in the Federal bills from which the deduction was made.
    The court decided that plaintiff was entitled to recover the sum of $21,166.35 (Finding IV) and the sum of $5,643.33 (Finding V (2)), the two sums aggregating the sum of $26,809.68, and that as to the item of $5,088.18 (Finding V (3)), its petition should be dismissed.
    
      
       Writ of certiorari denied.
    
   Campbell, Chief Justice,

delivered the opinion of the court:

There is a stipulation of the facts in this case showing several items of the claim for which plaintiff is entitled to a judgment. A part of the claim, however, presents a question determined by this court in the Southern Pacific Company case, No. 34717, decided December 6, 1926, 62 C. Cls. 649. That question arises upon the following facts:

The plaintiff presented its bill and was paid. Subsequently the Auditor for the War Department, claiming that plaintiff had been overpaid, deducted the amount of the alleged overpayment from certain unsettled accounts of the United States Eailroad Administration. A portion of this amount was paid by the plaintiff to the Eailroad Administration in its final settlement therewith, but a part of the overpayment has not been paid or accounted for by the plaintiff to the Eailroad Administration nor to the United States. This amount, approximately $5,000, was by the Eailroad Administration charged back through certain of its accounts in 1920 to the other Federal lines interested in the bills from which deductions were made. In the Southern Pacific case it was said: Without showing that it has accounted for them to the Eailroad Administration, the plaintiff can not recover the amount. Its bill was paid originally in full, and if the Eailroad 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 it is entitled to recover.” So in this case the ■plaintiff has been paid in full. It has not settled the part of the claim in question with the Railroad Administration, and the charging by the Railroad Administration of the items to ■other parties would not arm the plaintiff with the right to recover in the absence of proof that it has accounted to these other persons for the amount. See Chicago, Burlington & Quincy case, No. C-28, decided this day, ante, p. 83.

Plaintiff is entitled to judgment as shown in the conclusion, but as to the other item, the petition is dismissed.

Moss, Judge; GRAham, Judge; Hay, Judge; and Booth, Judge, concur.  