SEPTEMBER 26, 1921, 1 COMP. GEN. 164

SEPTEMBER 26, 1921, 1 COMP. GEN. 164

SETTLEMENT OF CLAIMS OF COMMON CARRIERS DURING FEDERAL CONTROL A CLAIM FOR SERVICES RENDERED THE WAR DEPARTMENT IN MAINTAINING TRACKS OF A RAILROAD ON A GOVERNMENT RESERVATION DURING PERIOD OF FEDERAL CONTROL IS ONE INCIDENT TO OR ARISING OUT OF TRANSPORTATION SERVICES OVER THE TRACKS AND WAS THEREFORE EMBRACED WITHIN THE SETTLEMENT OF THE AUDITOR FOR THE WAR DEPARTMENT BETWEEN THE UNITED STATES RAILROAD ADMINISTRATION AND THE WAR DEPARTMENT AUGUST 4, 1920, REVISED BY THE COMPTROLLER OF THE TREASURY AUGUST 12, 1920, AND NO ADDITIONAL PAYMENT IS AUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 26, 1921:

THE DIRECTOR GENERAL OF RAILROADS APPLIED SEPTEMBER 2, 1921, FOR A REVISION OF THE ACTION OF THE AUDITOR FOR THE WAR DEPARTMENT IN DISALLOWING BY SETTLEMENT NO. 55160 DATED FEBRUARY 5, 1921, THE CLAIM OF THE UNION PACIFIC RAILROAD CO. FOR $12,785.81 ON ACCOUNT OF MAINTENANCE OF CERTAIN TRACKS ON THE GOVERNMENT RESERVATION AT CAMP FUSTONS AND PAWNEE FLATS, KANS., FOR THE PERIOD FROM JANUARY 1, 1918, TO JUNE 1, 1919, WHILE SAID RAILROAD WAS UNDER FEDERAL CONTROL.

THE WAR DEPARTMENT CLAIMS BOARD ASSUMED THAT THIS CLAIM CAME WITHIN THE PROVISIONS OF THE ACT OF MARCH 2, 1919, 40 STAT., 1272, AND, BY AUTHORITY OF THE SECRETARY OF WAR, MADE AN AWARD THEREON IN THE FULL AMOUNT CLAIMED. SAID AWARD WAS MADE ON THE BASIS OF THE CLAIM FILED IN THE OFFICE OF THE AUDITOR FOR THE WAR DEPARTMENT.

THE AUDITOR DISALLOWED THE CLAIM UPON THE GROUND THAT IT WAS EMBRACED WITHIN THE SETTLEMENT MADE BY HIM AUGUST 4, 1921, AND AFFIRMED BY THE COMPTROLLER OF THE TREASURY AUGUST 12, 1920.

IT APPEARS THAT OF THE AMOUNT CLAIMED, $6,624.16, IS FOR MAINTENANCE OF TRACKS ON THE COMPANY'S RIGHT OF WAY IN THE RESERVATION AND THAT $6,161.65 IS FOR MAINTENANCE OF TRACKS IN THE RESERVATION OFF OF THE RIGHT OF WAY. IT ALSO APPEARS THAT THE TRACKS INVOLVED WERE CONSTRUCTED DURING THE PERIOD FROM JUNE L, 1917, TO DECEMBER 31, 1917, FOR THE PURPOSE OF EXPEDITING AND FACILITATING THE MOVING OF SHIPMENTS TO AND FROM THE RESERVATION OVER THE UNION PACIFIC LINES AND THAT THE EXPENSE OF MAINTENANCE WAS INCIDENT TO AND RESULTED FROM THE USE OF SAID TRACKS BY THE UNION PACIFIC RAILROAD CO.

WHETHER THE COMPANY OR THE UNITED STATES RAILROAD ADMINISTRATION RECEIVED ANY COMPENSATION FROM THE WAR DEPARTMENT FOR THE TRANSPORTATION SERVICE RENDERED OVER THESE TRACKS DOES NOT APPEAR. IF COMPENSATION WAS PAID FOR SUCH SERVICE IT MUST BE HELD THAT SAID PAYMENT COVERED THE COST OF TRACK MAINTENANCE BECAUSE SUCH COSTS ARE ALWAYS FOR CONSIDERATION IN FIXING TRANSPORTATION CHARGES. IF NO COMPENSATION WAS PAID FOR THE TRANSPORTATION SERVICE RENDERED OVER THESE TRACKS, THEN THE THEORY UPON WHICH THE COSTS OF TRACK MAINTENANCE WOULD BE A CHARGE AGAINST THE WAR DEPARTMENT IS THAT SUCH COST WAS INCIDENT TO AND RESULTED FROM THE TRANSPORTATION SERVICE RENDERED BY THE RAILROAD OR THE UNITED STATES RAILROAD ADMINISTRATION TO THE WAR DEPARTMENT. BUT IN THAT CASE, OR IN ANY OTHER VIEW THAT MAY BE TAKEN OF THE MATTER, THE CLAIM IS CLEARLY A CLAIM FOR MAINTENANCE INCIDENT TO OR ARISING OUT OF TRANSPORTATION SERVICES. IN THIS RESPECT THIS CLAIM DIFFERS FROM THE CLAIMS FOR THE COST OF CONSTRUCTION OF TRACKS WHICH WERE CONSIDERED AND ALLOWED BY THE COMPTROLLER OF THE TREASURY MAY 23, 1921, AND JUNE 11, 1921. I THINK THERE IS NO ROOM FOR REASONABLE DOUBT THAT THIS CLAIM BELONGS TO THE CLASS OF CLAIMS COVERED BY THE AUGUST, 1920, SETTLEMENT AND THEREFORE MUST BE REGARDED AS HAVING BEEN EMBRACED WITHIN SAID SETTLEMENT EVEN THOUGH IT MAY NOT IN FACT HAVE BEEN CONSIDERED IN CONNECTION THEREWITH. SEE DECISION OF SEPTEMBER 1, 1921, IN THE CASE OF THE PENNSYLVANIA RAILROAD CO., 1 COMP. GEN., 101, AND DECISION OF SEPTEMBER 24, 1921, 1 COMP. GEN., 160, IN THE CASE OF WEST JERSEY AND SEASHORE RAILROAD.

UPON A REVIEW OF THE MATTER NO DIFFERENCES ARE FOUND AND THE SETTLEMENT IS SUSTAINED.