
    EL PASO & SOUTHWESTERN CO., EL PASO & SOUTHWESTERN RAILROAD CO., EL PASO & SOUTHWESTERN RAILROAD CO. OF TEXAS, AND EL PASO & NORTHEASTERN RAILROAD CO., DOING BUSINESS AS THE EL PASO & SOUTHWESTERN SYSTEM, v. THE UNITED STATES.
    [No. A-310.
    Decided June 8, 1925]
    
      On the Proofs
    
    
      Railroad rates; improper combinations; protest. — Where improper combinations of rates are applied by Government officers and payment is received by plaintiffs under protest, the plaintiffs may recover.
    
      Same; passenger service. — Where plaintiffs transport passengers in box and cattle cars, they are not entitled to compensation based on tariffs which apply to ordinary passenger service.
    
      The Reporter's statement of the case:
    
      Mr. William R. Harr for the plaintiffs. Mr. Charles H. Bates was on the briefs.
    
      Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant. Mr. Perry W. Howard was on the brief.
    The following are the facts as found by the court:
    I. The El Paso and Southwestern Company is a corporation of the State of New Jersey, the El Paso & Southwestern Railroad Company is a corporation of the State of Arizona, the El Paso & Southwestern Railroad Company of Texas is a corporation of the State of Texas, and the El Paso and Northeastern Railroad Company is a corporation of the State of Texas, which companies plaintiffs herein, form an unincorporated association of railroad companies known and doing business as the El Paso & Southwestern system, under the name of which system plaintiffs generally transact their business as common carriers, including the making of contracts for transportation, publishing tariffs, and rendering-accounts to the Government and others for such transportation.
    II. At various times prior to the dates of the transportation hereinafter referred to, plaintiffs, in commoii with other railroad carriers of the United States, entered into agreements with the Government of the United States on the subject of fares and allowances for the transportation of military traffic, the said agreements being variously entitled interterritorial military arrangements, interterritorial military agreements, western military arrangement, etc. The said agreements were executed on behalf of the carriers by the duly authorized agents of the Southwestern, Transcontinental, and' Western Passenger Associations, the Central Passenger Association, the New England Passenger Association, the Southeastern Passenger Association, and the Trunk Tine Association, and on behalf of the United States by the quartermaster, United States War Department, the Chief of the Bureau of Navigation, United States Navy Department, and the quartermaster, United States Marine Corps. All of said .agreements, which were in effect during the periods hereinafter referred to and at the dates of the transportation herein described and referred to, contain certain provisions relative to the construction of net fares and allowances and the use of party fares. One of the said agreements, designated western military arrangement, dated April 1, 1916, effective July 1, 1916, contained the following-provisions :
    “(9) Party fares (where authorized) apply for parties traveling together on one party ticket.
    “(a) Party fares may be used as factors in constructing through net fares to and from Central Trunk Line, Southeastern and New England territories, in the understanding that the basing points shall be Chicago, St. Louis, Memphis, Vicksburg, and New Orleans only. Neither two or more party fares, nor a party fare and an individual fare, east or Avest of the gateAvays named, may be combined in establishing a basing fare to or from the basing point. Party fares used to and from basing points must be authorized as one through party fare to or from such basing points, as the case may be. A party fare or an individual fare, published as one through fare td or from the basing points named, may, however, be combined with authorized individual fares east or west of such points in making through net fares between the eastern and Avestern territories described except that Avhere through fares of like class are published they shall be used in all cases in establishing through net fares. All fares used in establishing net fares must be laAvfully on file with the Interstate Commerce Commission.
    
      “(h) In the construction of net military fares having origin and destination Avithin the territory Avest of and including Chicago, St. Louis, Memphis, Vicksburg, and NeAv Orleans, party fares to or from St. Louis and Kansas City only may be combined with party fares to and from those gateways only, and party fares to and from St. Louis to and from those gateways only. Tavo or more party fares nor a party fare and an individual fare, on either side of St. Lotus and Kansas City, may not be combined in establishing the basing fare to or from St. Louis or Kansas City.
    
      “(g) Net fares established in combinations made under sections (a) and (h) apply via usual one-way ticketing routes carrying short-line fares, or via routes specifically equalizing net fares so made, but shall be restricted to usually traveled routes for military traffic from starting point to destination.
    
      “(d) Where party fares are used in the territories and upon the bases outlined in sections (a) and (h) herein, the same shall be net cashed in the usual way via rate-making gateway only, but where such fares are used for any part of the distance in the territory west of Chicago, St. Louis, Memphis, Vicksburg, and New Orleans, under sections (a) and (h) herein, the 5 per cent allowance to the Government shall not apply to any part of the through fare or proportion, either party or individual fare factor, so far as western carriers are concerned.
    
      “(e) The intent of this agreement is that Avhere through fares are published no combinations of fares Avhatsoever are to be made, except as specified in sections (a) and (5) herein.”
    Another of the said agreements, designated interterritorial military arrangement, dated December 28, 1916, effective January 1, 1917, contained the following provisions:
    
      “For military traffic moving from territory east of Chicago, St. Louis, Memphis, Vicksburg, and New Orleans to territory west thereof, or vice versa, authorized party fares to and from the gateways named may be used in the construction of through net fares, in the understanding that the basing points will be Chicago, St. Louis, Memphis, Vicksburg, and New Orleans only.
    , “ Neither tivo or more party fares nor a party fare and an individual fare east or west of the gateways named may be combined in establishing a basing fare to or from the basing point. Any party fare used to or from the basing points named must be authorized as one through party fare to or from such basing points, as the case may be. A party fare or an individual fare published as one through fare to or from the basing points named may, however, be combined with authorized individual fares east or west of such points in making through net fares between the eastern and western territories described, except that where through fares of like class are published they shall be used in all cases in establishing through net fares; all fares used in establishing net fares must be lawfully on file with the Interstate Commerce Commission.”
    III. During the years 1916 and 1917 the plaintiffs, under the name of the said El Paso and Southwestern system, at the request of officers of the United States having proper authority for the purpose, transported certain troops of the United States. For such transportation the plaintiffs, as the initial carriers, presented their bills, made out in accordance with tariff rates in force on said lines, to the proper disbxirsing officer: the said disbursing officer or the auditor applied to said transportation certain combinations of individual and party fares not authorized by any existing tariff in force on said lines and in contravention of the agreements between the United States and the plaintiffs, and either underpaid said bills or deducted from other bills of the plaintiffs certain amounts, aggregating $7,949.55, and the' said combinations were used and underpayments and deductions made against plaintiffs’ express protests in writing.
    IV. In September and October, 1916, the plaintiffs transported, a number of officers and enlisted men from Douglas, Arizona, to points in Montana and New Jersejr. Each request issued to the plaintiff railroads called for second-class transportation for each movement of officers and men. The transportation requests drawn on the Pullman Company for sleeping-car accommodations specified standard berths for the officers and tourist berths for the enlisted men, with two exceptions: One from Douglas, Arizona, to East Orange, New Jersey, called for 48 lower and 59 upper tourist berths, and one from Douglas to Jersey City called for 35 lower and 32 upper tourist berths. In both exceptions the officers were transported in standard berths, and the difference in passenger fares between first and second class amounted to $11.33. The company presented its bills to the disbursing officer for first-class fares for officers and second-class fares for enlisted men. The disbursing officer paid second-class fares for the transportation of said officers and men, the difference between such first and second class fares amounting to $107.15. This amount, $707.75, less $17.33, would be $690.42. The amount under this item claimed in the petition is $578.23.
    V. For the transportation in July, 1916, of four soldiers from Columbus, New Mexico, to Santa Fe, New Mexico, the plaintiffs presented to the disbursing officer a bill for $65.60 ($16.40 each). The disbursing officer deducted 5 per centum, amounting to $3.28, on the ground that under the military arrangements between plaintiffs and the United States, where there was conqDetitive military traffic, the United States was entitled to a five x^er cent deduction and that such competition existed as plaintiffs could have moved its trooxas by the New Mexico Central Railway, although not a party to said arrangements. The xolaintiffs accepted the deduction.'
    VI. (1) In June, 1916, the plaintiffs transported 685 officers and enlisted men from Douglas to Warren, Arizona, and presented their bill to the disbursing officer for such service at the rate of $1.25 per capita, the fares stated in the only one-way individual tariff in force on said lines, aggregating $856.25. The said bills were forwarded to the Auditor for the War Department for direct settlement. The officers were transported in a day coach and the enlisted men in three box cars and twenty-three cattle cars. There was no tariff in force on said lines for the use of box or cattle cars, and there is no evidence submitted to show the value of such service. There was, however, a round-trip party fare of the same amount as the one-way individual fare referred to above. The auditor in settling said bill allowed one-half of the rate of the round-trip party tariff for the service, which resulted in cutting in two the rates charged by plaintiff. The deductions of the auditor amounted to $428.12. Included in the amount deducted was one-half of the charge for the transportation of 27 officers, who were properly accommodated in a day coach and billed at $1.25 each, the one-half amounting to $16.87, leaving $411.25 deducted for the men. The plaintiffs protested in writing against the action of the auditor.
    (2) In July, 1916, the plaintiffs transported 271 officers and men from Douglas to Fort Huachuca, Arizona, and presented their bills to the disbursing officer for $745.25 under the same circumstances and conditions as above, except that the enlisted men, save three, were transported in box cars. The other enlisted men and the 15 officers were transported in a passenger coach. The auditor in direct. •settlement deducted $372.62, one-half of said bill, -on the same grounds as the previous settlement. The 15 officers and three enlisted men were properly transported under the only one-way individual tariff in force at $2.75 each, one-half of which amounted to $24.75, leaving the deduction for the enlisted men $347.87. The plaintiff protested in writing against the action of the auditor.
    (3) In June, 1916, the plaintiffs transported 559 officers and enlisted men from Douglas to Nogales, Arizona, and-presented their bill to the proper disbursing officer for $5,031.00, as compensation based on a through fare in force via Tucson, at $9.00 per capita. The through individual tariff from Douglas to Nogales via Fairbanks was $5.40. The troops were routed through Tucson by mutual arrangement to avoid the delay that would have been caused by routing via Fairbanks, due to the difficulty in securing an engine to move the train. The bill was forwarded to the auditor, who settled it on the basis of the route through Fairbanks, 558 officers and men at $5.40 each, amounting to $3,013.20, and deducted one-half, $1,506.60 (one enlisted man as animal attendant not counted), and paid the other half to plaintiffs against their protest in writing. The enlisted men, 537, were moved in box cars, and the officers, 21, were moved in passenger cars. From the amount claimed the auditor deducted on account of the enlisted men $3,392.10 and on account of the officers $132.30.
    VII. In July, 1916, the plaintiffs transported 60 officers and men from Columbus, New Mexico, to Animas, New Mexico, and presented their bill to the disbursing officer, made out in accordance with the only individual one way tariff in force, and this gave a rate of $3.00 per capita, amounting to $180. There was a first-class round trip party tariff in force on said lines giving a $4.00 per capita rate. The said bill was forwarded to the auditor, who allowed one-half of the round trip tariff and deducted $1.00 per capita, amounting to $60.00, against the written protest of plaintiff. The car furnished was a second-class car of the Mexican Northwestern Railway, in a filthy condition. The car was accepted under vigorous protest by the officer in command of the troops. It was the only car plaintiffs could furnish at that time. There was no tariff in force on said lines for the class and character of service furnished.
    The court decided that plaintiffs were entitled to recover, in part.
   MEMORANDUM BY THE COURT

(1) The plaintiffs are entitled to recover the item of $7,949.55 (Finding III) because its bills were properly rendered and the accounting officers applied an improper combination of rates. The plaintiffs accepted payments under protest. (See Southern Pacific Company case, decided by the Supreme Court May 11, 1925, 268 U. S. 263.)

(2) The plaintiffs are entitled to recover the item of $578.23 (Finding IV) because it rendered the service called for. The deduction, being for first and second class made by the disbursing officer, was in error. This item is the amount claimed in the petition.

(3) The plaintiffs are not entitled to recover $3.28 under Finding V, because they accepted the deduction.

(4) The plaintiffs aro entitled to recover the item of $16.87 in the first paragraph of Finding VI, the item of $24.75 in the second paragraph of Finding VI, and $132.30 in the tliird paragraph of Finding VI. These items were on account of deductions made for the transportation of officers. The plaintiffs are not entitled to recover for the deductions made on account of transportation of enlisted men. It does not appear that the men were transported in accordance with the requirements upon which the tariff rates are based. The service rendered by transporting the men in box cars and cattle cars is not a transportation service upon which the tariff rates are based. It is not the ordinary or usual kind of transportation nor is the service such as is required. The tariff rate, therefore, can not properly be applied to this service, and the evidence fails to show what the value of the service was.

(5) For the reasons last above stated no allowance is made for the item mentioned in Finding VII.

Graham, Judge, took no p$.rt in the decision of this case.  