Opinion of the Court

VIII. Plaintiff having presented its claim to the Board of Contract Adjustment under what is called the Dent Act, the same was disallowed. The evidence fails to show any contract whereby the Government agreed to pay plaintiff for any other yarns than those necessary to complete its said contract. No officer of the Government dealing with plaintiff or the Whitman company was authorized to contract for more yarn than that necessary to complete its said contract, and it does not appear that any officer undertook to make any such agreement. The plaintiff has been duly paid in accordance with the recommendation above mentioned of Captain Wilkinson approved by it and in accordance with the cancellation agreement and award already mentioned. The court decided that plaintiff was not entitled to

recover.

CAMPBELL, Chief Justice, delivered the opinion of the

court:

The plaintiff, under date of May 16, 1918, had a contract with the Government for the manufacture of 480,000 pairs of men's hose, and was in the performance of the contract at the time of the armistice. Directly after the signing of the armistice steps were taken to stop deliveries under the contract. Plaintiff was duly notified and negotiations took place looking to the settlement of plaintiff's claim under its contract. After consideration of all the facts an agreement was arrived at and plaintiff was paid accordingly. This settlement provided that the plaintiff should retain the yarns on hand and those it had contracted for necessary to complete its contract and should receive 40 per cent of the value of these yarns. It claimed an additional sum for yarns which it had agreed to buy from another concern in excess of its contract requirements. The representative of the Government declined to allow this claim for the excess, but recommended payment for the other yarns as stated, and the items of the settlement were agreed upon by the officer representing the Government and the plaintiff. Upon this basis the plaintiff was paid the full amount due it. It executed a contract

Reporter's Statement of the Case

of settlement which discharged all liability of the Government. The present claim is not sustained by any evidence. The petition should be dismissed. And it is so ordered.

GRAHAM, Judge; HAY, Judge; DowNEY, Judge; and BOOTH, Judge, concur.

LOUISVILLE & NASHVILLE RAILROAD CO. v. THE UNITED STATES

[No. E-339. Decided April 26, 1926]

On the Proofs

Railroad rates; land-grant deductions.—(1) Members of the Enlisted Reserve Corps, United States Army, and Naval Reserve Force, on active duty, members of the Navy Nurse Corps, and Army, Navy, and Marine Corps guards and prisoners, enlisted men, are troops of the United States within the meaning of the land-grant statutes and their transportation for the Government is subject to land-grant deductions. See Illinois Central R. R. Co. case, ante, p. 61.

(2) Members of the Coast Guard, Treasury Department, in times of peace, and members of the National Guard when not in the Federal service are not troops of the United States within the meaning of the land-grant acts. See Louisville & Nashville R. R. Co. case, 258 U. S. 374, and Oregon-Washington R. R. & Nav. Co. case, 60 C. Cls. 458.

The Reporter's statement of the case:

Mr. Benjamin Carter for the plaintiff.

Mr. 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. Under acts of Congress granting lands in aid of railroads and other acts appropriating money the railroads so aided, including a portion of plaintiff's lines, have been required to transport troops of the United States at fares less than those charged for other persons similarly transported.

Reporter's Statement of the Case

III. At the time of the service hereinafter mentioned the plaintiff and its connecting lines had entered into certain "equalization" agreements to accept in connection with transportation of troops of the United States the lowest net fares as computed via land-grant routes. Circular 15, Quartermaster General of the Army, May 18, 1922.

IV. During the years 1920 to 1924, inclusive, the plaintiff and its connecting lines, at the request of authorized officers of defendant, made upon prescribed forms, performed certain service for the United States in the transportation of the following classes of persons: (1) National Guard; (2) Members of Enlisted Reserve Corps of the United States Army; (3) enlisted men of the United States Army; (4) Navy; and (5) Marine Corps, all traveling as military guards or prisoners; (6) Coast Guard; (7) Navy Nurse Corps; (8) Naval Reserve Force.

V. The members of the National Guard and of the Enlisted Reserve Corps of the United States Army were traveling to and from camps of instruction, under orders of the Secretary of War, as authorized by the national defense act of June 3, 1916, 39 Stat. 166, and other acts of Congress. The members of the National Guard, so traveling, had not been called or drafted into the military service of the United States.

The members of the Coast Guard were traveling under and at the expense of the Treasury Department.

The members of the Navy Nurse Corps were traveling under competent orders of the Navy Department, and their transportation was paid from an appropriation for that department. The organization to which they belonged was established by the act of May 13, 1908, 35 Stat. 127, 146.

The members of the Naval Reserve Force were traveling to and from camps of instruction under orders of the Secretary of the Navy, as authorized by the act of August 29, 1916, 39 Stat. 556, as amended.

VI. For all of the foregoing transportation services the plaintiff rendered its bills to the proper disbursing or accounting officer of the United States, computed at full tariff fares, and deductions on account of land grant were made by

Opinion of the Court

the said disbursing or accounting officers from the identical bills or from other bills of the plaintiff for different services, and only such amounts were thereby allowed the plaintiff for said services as would have been due, under the landgrant acts and equalization agreements, for transporting troops of the United States.

In the case of the members of Enlisted Reserve Corps of the Army there were included in the said transactions, in addition to land-grant deductions, certain additional deductions of 3 per cent, known as the "military allowance." The evidence does not disclose the separate amounts thereof, but does show the aggregate of the land-grant deductions and the 3 per cent military allowance to be $1,328.87.

VII. For the various classes of persons mentioned, the said several deductions were as follows:

(1) National Guard___.

(2) Members of Enlisted Reserve Corps, United States

Army.

(3) Guards and prisoners, Army

(4) Guards and prisoners, Navy.

(5) Guards and prisoners, Marine Corps__

(6) Coast Guard___.

(7) Navy Nurse Corps_-‒‒

(8) Naval Reserve Force__.

$14, 703.99

1, 328. 87 430.97

7.69 180.42

124.89

52. 14

132.30

16, 961. 27

The court decided that plaintiff was entitled to recover, in part.

HAY, Judge, delivered the opinion of the court:

This is a suit brought by the Louisville & Nashville Railroad Co. against the United States to recover certain landgrant deductions made by the defendant in a settlement with the plaintiff for transportation of certain persons. These deductions were made on the ground that the following classes of persons were troops of the United States within the meaning of the land-grant statutes, and that the plaintiff was obliged to transport these persons at the land-grant rates established and agreed upon by the parties:

(1) National Guard.

(2) Coast Guard.

Opinion of the Court

(3) Members of Enlisted Reserve Corps, United States Army.

(4) Military guards and prisoners.

(5) Naval guards and prisoners.

(6) Marine Corps guards and prisoners. (7) Naval Nurse Corps.

(8) Naval Reserve Force.

In the case of Illinois Central Railroad Co. v. United States, No. D-348, decided by this court April 5, 1926, ante, p. 61, it was held that military guards and prisoners and members of the Naval Reserve Force were troops of the United States within the meaning of the land-grant statutes. It must also be held that naval guards and prisoners and Marine Corps guards and prisoners are troops of the United States within the meaning of those statutes.

The Naval Nurse Corps is a part of the regular Naval Establishment, and its members when being transported for the purposes of the Government must be classified as troops of the United States. (35 Stat. 146.)

Members of the Enlisted Reserve Corps, United States Army, are constituent parts of the Army of the United States (41 Stat. 759). When in active service they possess all the attributes of any other members of the Military Establishment. In Illinois Central Railroad Co. v. United States, supra, we held that members of the Officers' Reserve Corps were troops of the United States when on active duty. The same reasoning applicable to the Officers' Reserve Corps applies to the Enlisted Reserve Corps when its members are on active duty, and when on active duty and the transportation required in connection therewith is paid for by the United States the travel is subject to land-grant deductions authorized for troops of the United States.

The National Guard when not in the service of the United States is no part of the Military Establishment of the Government, and are not troops of the United States within the meaning of the land-grant acts, and the plaintiff is therefore entitled to the transportation of these persons free from land-grant deductions.

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