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258

Statement of the Case.

by state enactment that is not given them by the due process and equal protection clauses of the Fourteenth Amendment. As the law does not contravene these constitutional provisions, it must be held not to violate the treaty.

Judgment affirmed.

SOUTHERN PACIFIC COMPANY v. UNITED

STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 285. Argued November 19, 20, 1924.-Decided May 11, 1925.

1. Where a railroad, for transporting applicants for enlistment in

the Army, discharged, retired and furloughed soldiers, and civilian employees of the War Department, rendered its bills at land-grant rates, knowing that according to a ruling of the Comptroller of the Treasury such persons were to be regarded as troops of the United States” for whose transportation only land-grant rates could be paid by disbursing officers, and accepted payment of its bills on that basis without protest, held that, though the Comptroller's ruling was erroneous, the railroad was bound by acquiescence and could not recover the difference between the amount received and the larger amount which it would have been lawfully

entitled to charge under its tariff. P. 268. 2. But aliter where the bills, though rendered at land-grant rates,

bore a short form of protest; “Amounts claimed in this bill accepted under protest ”; or a form more extended and explanatory; since by these the government officers were sufficiently notified that payment at the lower rates would not be accepted in final

settlement. P. 268. 3. Where, however, the railroad rendered most of its bills with in

dorsed protests, but a considerable number during the same period without them, as to these latter it was bound by its acceptance of

the land-grant rates. P. 270. 59 Ct. Cls. 36, reversed.

APPEAL from a judgment of the Court of Claims rejecting the appellant's claim for the difference between

Opinion of the Court.

268 U.S.

amounts paid by the Government for transportation at land-grant rates and the lawful tariff charges.

Mr. William R. Harr, with whom Mr. Charles H. Bates was on the briefs, for appellant.

Mr. Merrill E. Otis, Special Assistant to the Attorney General, with whom the Solicitor General was on the brief, for the United States.

MR. JUSTICE SANFORD delivered the opinion of the Court.

The Southern Pacific Company, having carried certain persons as passengers at the request of the Government and received payment for such transportation at landgrant rates, brought this action to recover the difference between the rates thus paid and the full tariff rates. The Court of Claims, on its findings of fact, being of opinion that the claimant by its course of proceeding and acceptance of the land-grant rates was precluded from the recovery of the balance of the full tariff rates, entered judgment dismissing the petition. 59 Ct. Cls. 36.

The facts found, shortly stated, are as follows: The claimant in 1911 became a party to the so-called “landgrant equalization agreements ” with the Quartermaster General, by which it agreed (subject to certain exceptions not here material) to transport troops of the United States at the net rates effective over land-grant lines, that is, at fifty per cent. of the rates charged private parties. Thereafter, between March 1, 1912, and June 18, 1916," the claimant transported, upon Government requests, a number of applicants for enlistment in the Army, discharged, retired and furloughed soldiers, and civilian employees in the War Department.

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* See United States v. Union Pacific Railroad, 249 U. S. 354, note 1.

The date on which the so-called “interterritorial military arrangement” became effective as to the claimant and the other railroads.

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Opinion of the Court.

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It had been previously ruled by the Comptroller of the Treasury that such persons were to be regarded as troops of the United States and that their transportation could be paid for only at land-grant rates; and disbursing officers, as the claimant knew, were authorized to make payments on that basis only. Because of this ruling the claimant presented its bills for all such transportation on the form of voucher prescribed for transportation at landgrant rates, in which it stated in appropriate columns the

gross amount” of the regular fares, the "amount to be deducted on account of land-grant," and, in the final column, the "amount claimed” (the gross amount less

( the land-grant deduction); and certified the accounts to be correct. All these vouchers were presented to the Disbursing Quartermaster at San Francisco, and were paid by him in the amounts claimed; and all these payments were accepted by the claimant.

Prior to January 1, 1914, the claimant, except in one instance, accepted payment of these bills without protest or other objection.

After January 1, 1914, however, there was written, typewritten or stamped by the claimant upon a part of the land-grant vouchers, before they were paid, a socalled short form of protest, reading as follows: "Amounts claimed in this bill accepted under protest.” This form of protest was understood by the clerk who handled these bills in the office of the Disbursing Quartermaster as being

addressed to the matter of land-grant rates," for the purpose of reserving the claimant's right to present a further claim for full commercial fares to the accounting officers or the courts. The claimant used this form of protest on 201 vouchers between January 1 and October 1, 1914;* but 303 of the vouchers presented and paid during this period bore no protest.

See 14 Comp. Dec. 967.
* Also on one previous voucher.

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Opinion of the Court.

268 U.S.

On October 1, 1914, the claimant began “systematically” to endorse in typewriting on the land-grant vouchers, before presentment, a so-called long form of protest, reading as follows: "As U. S. Government accounting officers claim they have no authority to allow or pay for the transportation of discharged soldiers more than the fares for troops of the U. S. such fares are shown herein but under protest and S. P. Co. for itself and connecting carriers does not waive any of its rights to full published tariff fares and any payment at any less amount will be accepted as part payment only for the services performed.” This form of protest was used on 516 vouchers between October 1, 1914, and June 18, 1916," but 212 of the vouchers presented and paid within this period bore no form of protest whatever'.

The claimant brought the present action in March, 1918, shortly before the decision in United States v. Urion Pacific Railroad, 249 U. S. 354. In that case the railroad company, a party to the land-grant equalization agreement, having transported persons of all the classes that are here in question except civilian employees, had presented to the Auditor for the War Department claims for such transportation at the full tariff rates, and the Auditor and Comptroller having successively refused to allow these claims at more than the land-grant rates, had then brought suit in the Court of Claims to recover the full passenger fares. It was held by this court that such persons were not troops of the United States within the meaning of the land-grant acts and the equalization agreements, and that the railroad company was entitled to recover the full amount claimed. In the present case the Court of Claims held that in the light of this decision none of the classes of persons here in question could be regarded as troops of the United States, and recognized that the claimant would have been en

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Opinion of the Court.

titled originally to compensation at the full passenger rates. This is not questioned by the Government; the sole contention being that, as was further held by the Court of Claims, the action of the claimant in voluntarily presenting its bills at the land-grant rates and accepting payment thereof, precludes it from recovery of the balance of the full rates to which it would otherwise have been entitled.

The question when the substantive right to recover an amount justly due from the Government is lost through some act or omission upon the part of the claimant, was considered at length in St. Louis, Brownsville & Mexico Railway v. United States, ante, p. 169, in which the decisions bearing on this question were collated. It was there said that this right “can be lost only through some act or omission on the part of the claimant which, under the rules of the common law as applied by this Court to claims against the Government, discharges the cause of action. Acquiescence by the claimant in the payment by the Government of a smaller amount than is due will ordinarily effect the discharge. Acquiescence can be established by showing conduct before the payment which might have led the Government to believe that the amount allowed was all that was claimed, or that such amount, if paid, would be received in full satisfaction of the claim. Acquiescence can, also, be established by showing conduct after the payment which might have led the Government to believe that the amount actually received was accepted in full satisfaction of the original claim. But to constitute acquiescence within the meaning of this rule, something more than acceptance of the smaller sum without protest must be shown. There must mave been some conduct on the part of the creditor akin to abandonment or waiver or from which an estoppel may arise.” The defense of acquiescence by the acceptance of a smaller sum than was actu

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