A-41644, OCTOBER 30, 1934, 14 COMP. GEN. 342

A-41644: Oct 30, 1934

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ARE PAID ON THE BASIS OF NET LAND-GRANT RATES. A PROTEST DIRECTED TO THE QUESTION OF THE STATUS OF THE TRAVELERS AS "TROOPS OF THE UNITED STATES" IS WITHOUT EFFECT AS REBUTTING THE PRESUMPTION OF ACQUIESCENCE IN THE CORRECTNESS OF THE PAYMENTS OTHERWISE. BASED NOT ON THE STATUS OF THE TRAVELERS BUT ON THE CONTENTION THAT THE AMOUNT DEDUCTED FOR LAND GRANT WAS EXCESSIVE. THE SETTLEMENTS WILL NOT BE REOPENED. THE SETTLEMENTS ARE LISTED AS FOLLOWS: CHART ADDITIONAL SETTLEMENT BILL CLAIMED ALLOWED DISALLOWED NOW CLAIMED 10518 . THE SETTLEMENTS WERE MADE IN 1925 AND 1926. WHICH HAVE BEEN ACCEPTED UNDER PROTEST BY THE PULLMAN COMPANY ON BEHALF OF THE CARRIERS FOR WHICH IT ACTS AS AGENT AND IN PART PAYMENT ONLY FOR THE SERVICES RENDERED.

A-41644, OCTOBER 30, 1934, 14 COMP. GEN. 342

TRANSPORTATION ACCOUNTS - REOPENING OF SETTLEMENTS - ACQUIESCENCE WHERE A CARRIER'S BILLS FOR PASSENGER TRANSPORTATION, STATED ON THE BASIS OF COMMERCIAL RATES, ARE PAID ON THE BASIS OF NET LAND-GRANT RATES, A PROTEST DIRECTED TO THE QUESTION OF THE STATUS OF THE TRAVELERS AS "TROOPS OF THE UNITED STATES" IS WITHOUT EFFECT AS REBUTTING THE PRESUMPTION OF ACQUIESCENCE IN THE CORRECTNESS OF THE PAYMENTS OTHERWISE, AND ACCORDINGLY, WHERE, AFTER A LAPSE OF TIME GREATER THAN THE PERIOD PRESCRIBED BY THE STATUTE OF LIMITATIONS FOR FILING SUIT IN THE COURT OF CLAIMS, THE CARRIER SEEKS A FURTHER ALLOWANCE, BASED NOT ON THE STATUS OF THE TRAVELERS BUT ON THE CONTENTION THAT THE AMOUNT DEDUCTED FOR LAND GRANT WAS EXCESSIVE, THE SETTLEMENTS WILL NOT BE REOPENED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 30, 1934:

THE PULLMAN COMPANY HAS FILED SEVERAL SUPPLEMENTAL BILLS CLAIMING THE RESPECTIVE AMOUNTS INDICATED BELOW IN CONNECTION WITH SETTLEMENTS STATED BY THIS OFFICE MAKING DEDUCTION FOR LAND GRANT FROM THE PULLMAN SURCHARGE FOR THE TRANSPORTATION OF GUARDS AND PRISONERS FOR THE NAVY DEPARTMENT BETWEEN CHICAGO, ILL., AND AUGUSTA, GA., ON VARIOUS DATES IN 1924, 1925, AND 1926. THE SETTLEMENTS ARE LISTED AS FOLLOWS:

CHART

ADDITIONAL

SETTLEMENT BILL CLAIMED ALLOWED DISALLOWED NOW CLAIMED 10518 --------- 1410

$365.81 $335.89 $29.92 $8.22 11565 --------- 5107 476.94 442.76

34.18 17.52 11816 --------- 309 52.65 51.09 1.56 1.08 12201 --------- 905 423.45 399.66 23.79 19.70 12273 ---------5701 188.78

178.00 10.78 7.46 24561 --------- 12607 70.20 66.16 4.04 3.40 37444 ----- ---- 110 483.60 456.58 27.02 22.56

79.94

THE CARRIER ORIGINALLY PRESENTED ITS BILLS ON THE BASIS OF COMMERCIAL RATES WITHOUT DEDUCTION FOR LAND GRANT. THE ORIGINAL BILLS ALSO COVERED TRAVEL OF OTHER GUARDS AND PRISONERS BETWEEN VARIOUS OTHER POINTS, IN ADDITION TO THOSE TRAVELING BETWEEN CHICAGO AND AUGUSTA. THE SETTLEMENTS MADE DEDUCTION FOR LAND GRANT WHERE APPLICABLE TO THE CHARGES FOR THE TRANSPORTATION OF THE GUARDS AND PRISONERS, WHETHER TRAVELING BETWEEN CHICAGO AND AUGUSTA OR BETWEEN OTHER POINTS. THE SETTLEMENTS WERE MADE IN 1925 AND 1926, THE LAST BEING UNDER DATE OF DECEMBER 21, 1926. THE CARRIER THEN PRESENTED SUPPLEMENTAL BILLS CLAIMING THE TOTAL AMOUNTS DEDUCTED BY THE SETTLEMENTS, SAID SUPPLEMENTAL BILLS BEARING THE SAME NUMBER AS THE ORIGINAL BILLS BUT WITH THE SUFFIX "S-A," E.G., SUPPLEMENTAL BILL 1410 S-A. THESE SUPPLEMENTAL BILLS BORE THE FOLLOWING NOTATION OF PROTEST:

THIS BILL REPRESENTS THE AMOUNTS DISALLOWED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT FROM THE PULLMAN COMPANY'S ORIGINAL BILL, BEARING THE SAME SERIAL NUMBER (WITHOUT THE LETTER AFFIX) AS THIS SUPPLEMENTARY BILL, RENDERED FOR THE FOLLOWING CLASSES OF TRANSPORTATION, THE AMOUNTS PAID ON SUCH ORIGINAL BILL BEING THE CHARGES ACCRUING FOR TRANSPORTATION OF "TROOPS OF THE UNITED STATES" UNDER THE LAND-GRANT ACTS, WHICH HAVE BEEN ACCEPTED UNDER PROTEST BY THE PULLMAN COMPANY ON BEHALF OF THE CARRIERS FOR WHICH IT ACTS AS AGENT AND IN PART PAYMENT ONLY FOR THE SERVICES RENDERED, THIS SUPPLEMENTAL BILL REPRESENTING THE ADDITIONAL AMOUNTS TO WHICH THE PULLMAN COMPANY CLAIMS IT IS ENTITLED IN PAYMENT FOR THE SERVICES RENDERED.

GUARDS AND PRISONERS.

IT WAS EVIDENT THAT THIS PROTEST WAS DIRECTED TO THE STATUS OF GUARDS AND PRISONERS AS TROOPS OF THE UNITED STATES, AS EVIDENCED ALSO BY THE FACT THAT THE SUPPLEMENTAL BILLS CLAIMED APPLICABLE AT COMMERCIAL RATES WITHOUT ANY DEDUCTION FOR LAND GRANT. THESE SUPPLEMENTAL BILLS WERE CONSIDERED AS SERVING NOTICE OF PROTEST AND WERE FILED WITH THE SETTLEMENTS TO WHICH THEY PERTAINED AS REQUIRING NO FURTHER ACTION BY THIS OFFICE. CONNECTION WITH THE SUPPLEMENTAL BILL PERTAINING TO SETTLEMENT NO. 10518, THE CARRIER WAS ADVISED IN LETTER OF APRIL 20, 1925, THAT SAID SUPPLEMENTAL BILL WOULD BE SO FILED WITHOUT FURTHER ACTION BY THIS OFFICE.

THE STATUS OF MILITARY GUARDS AND PRISONERS AS TROOPS OF THE UNITED STATES WAS DETERMINED IN ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES, 62 CT.CLS. 61, AND IN LOUISVILLE AND NASHVILLE RAILROAD CO. V. UNITED STATES, 62 CT.CLS. 154. SEE ALSO SOUTHERN PACIFIC CO. V. UNITED STATES, 72 CT.CLS. 273.

FOLLOWING THE FILING OF THE SUPPLEMENTAL BILLS REFERRED TO ABOVE, WHICH APPEARS TO HAVE BEEN DONE WITHIN A PERIOD OF FROM 3 TO 6 MONTHS FROM THE DATES OF THE SETTLEMENTS TO WHICH THEY PERTAIN, NO FURTHER ACTION APPEARS TO HAVE BEEN TAKEN BY THE CARRIER IN SEEKING A FURTHER ALLOWANCE WITH RESPECT TO THE TRANSPORTATION OF THESE GUARDS AND PRISONERS UNTIL BY LETTERS OF APRIL 5, 1933, IT TRANSMITTED TO THIS OFFICE FURTHER SUPPLEMENTAL BILLS BEARING THE SAME NUMBERS AS THE ORIGINAL BILLS BUT EACH NUMBER HAVING A SUFFIX THERETO OF "S-B" E.G., SUPPLEMENTAL BILL 1410-S-B, IN WHICH THE AMOUNTS SOUGHT APPLY ONLY WITH RESPECT TO THE GUARDS AND PRISONERS TRANSPORTED BETWEEN CHICAGO AND AUGUSTA AND ARE STATED TO REPRESENT THE DIFFERENCE BETWEEN THE AMOUNTS DEDUCTED FOR LAND GRANT BY THE SETTLEMENTS WITH RESPECT TO THOSE PERSONS AND THE AMOUNTS WHICH THE CARRIER NOW URGES SHOULD HAVE BEEN DEDUCTED. THE BASIS FOR THE REDUCED AMOUNTS CLAIMED IN THE MORE RECENT SET OF SUPPLEMENTAL BILLS IS SAID TO BE THAT THE PULLMAN RATES APPLICABLE TO THE SERVICE RENDERED ARE NOT APPLICABLE VIA THE ROUTE VIA WHICH THE LAND-GRANT DEDUCTION OF SAID 17.37 PERCENT USED IN THE SETTLEMENTS WAS DETERMINED AND THAT THE DEDUCTION PROPERLY APPLICABLE FOR LAND GRANT VIA ROUTES VIA WHICH THE PULLMAN RATES APPLY IS 2.768 PERCENT.

AS INDICATED ABOVE, THE FIRST SET OF SUPPLEMENTAL BILLS FILED IN CONNECTION WITH THESE SETTLEMENTS WAS ADDRESSED TO THE MATTER OF THE STATUS OF THE TRAVELERS AS TROOPS OF THE UNITED STATES. THE SECOND SET OF SUPPLEMENTAL BILLS IS ADDRESSED ONLY TO THE MATTER OF THE CORRECTNESS OF THE AMOUNT OF LAND GRANT DEDUCTED. IN OTHER WORDS, THERE APPEARS AN ABANDONMENT OF THE CONTENTION REGARDING THE STATUS OF THE TRAVELERS AS TROOPS OF THE UNITED STATES AND THE SEEKING OF AN ADDITIONAL ALLOWANCE ON THE BASIS OF THE LAND-GRANT RATES CLAIMED TO BE PROPERLY APPLICABLE. SOMEWHAT SIMILAR SITUATION WAS INVOLVED IN NORTHERN PACIFIC RAILWAY CO. V. UNITED STATES, 72 CT.CLS. 563, WHERE, WITH RESPECT TO THE PAYMENT AT LAND -GRANT RATES ON CERTAIN BILLS IN WHICH CHARGES HAD BEEN CLAIMED AT FULL COMMERCIAL RATES, A PROTEST WAS FILED ADDRESSED APPARENTLY TO THE CONTENTION THAT THE PROPERTY TRANSPORTED WAS NOT PROPERTY OF THE UNITED STATES. IN THE JUDICIAL PROCEEDINGS THE CARRIER ABANDONED ITS CONTENTION CONCERNING THE OWNERSHIP OF THE PROPERTY BUT SOUGHT AN ADDITIONAL ALLOWANCE ON THE BASIS THAT ITS EQUALIZATION AGREEMENT DID NOT APPLY TO THE SHIPMENT. THE COURT DETERMINED THAT IN SUCH CIRCUMSTANCES THE EFFECT OF THE PROTEST WAS LOST AND THAT THE PRESUMPTION OF THE CARRIER'S ACQUIESCENCE IN THE APPLICABILITY OF ITS EQUALIZATION AGREEMENT, OTHERWISE INDICATED, COULD NOT BE REBUTTED BY A PROTEST DIRECTED TO THE MATTER OF OWNERSHIP. MOREOVER, IN THE INSTANT MATTER IT IS TO BE NOTED THAT THE SECOND SET OF SUPPLEMENTAL BILLS WERE NOT PRESENTED FOR CONSIDERATION UNTIL MORE THAN 6 YEARS AFTER THE DATES OF THE SERVICE INVOLVED OR FOR THAT MATTER UNTIL MORE THAN 6 YEARS AFTER THE DATES OF THE SETTLEMENTS CONCERNED. RECOVERY IN THE COURT OF CLAIMS ON SUCH ITEMS WOULD THEREFORE BE BARRED BY THE STATUTE OF LIMITATIONS CONTAINED IN SECTION 156 OF THE ACT OF MARCH 3, 1911, 36 STAT. 1139. SEE, IN THIS CONNECTION, SOUTHERN PACIFIC CO. V. UNITED STATES, 67 CT.CLS. 414 (CERTIORARI DENIED, 280 U.S. 567) AND CHICAGO AND NORTHWESTERN RAILWAY CO. V. UNITED STATES, 68 CT.CLS. 524.

ACCORDINGLY, THE CARRIER HAVING APPARENTLY ACQUIESCED IN THE SETTLEMENTS, INSOFAR AS THE METHOD OF DETERMINING THE AMOUNT OF LAND GRANT DEDUCTIBLE IS CONCERNED, FOR A PERIOD GREATER THAN THAT PRESCRIBED IN THE STATUTE OF LIMITATIONS, SUCH SETTLEMENTS MAY NOT BE REOPENED AS REQUESTED.