Reporter's Statement of the Case to the accounting officers of the Treasury. Part of the bills so rendered were presented to said officers without protest and part had a protest stamped across the face of the bills, and no protest or objection was made when the several bills were paid. On May 21, 1920, the plaintiff filed another suit, No. 34613, claiming the refund of all the land-grant deductions which he had made under protest and had claimed in his original petition filed March 10, 1920, in this case. On June 14, 1920, the plaintiff filed request for findings of fact in the second case, claiming $6,483.21 on said protested bills. On June 23, 1920, a motion was filed by plaintiff for leave to amend the original petition by striking out all the bills which had been protested and reducing the amount from $22,155.53 to $15,672.22. This motion to amend was overruled, but with leave, however, to file an amended petition. Judgment was rendered by the court in the second suit, No. 34613, on June 28, 1920, for $6,483.21, the amount of the protested bills that were included in the original petition. On October 15, 1923, a second amended petition was filed in the present suit from which were eliminated all of the said protested bills for which the said judgment had been rendered. III. The International and Great Northern Railway was not a land-aided railroad. The plaintiff and his connecting lines equalized the interstate fares to which they were parties with the lowest net fares applying by way of lines aided in their construction by grants of land from the United States. IV. During the years 1913, 1914, and 1915, the plaintiff, at the request of proper officers of the War Department, furnished transportation for applicants for enlistment in the Army, discharged military prisoners, discharged and retired soldiers, and soldiers on furlough over routes subject to the equalization agreements with the Quartermaster General of the Army referred to in Finding III. V. The said services were performed by plaintiff and his connecting carriers upon requests made on authorized War Department forms. These forms contained on their face a request by the Quartermaster General for transportation for blank person and others from blank place Opinion of the Court to blank, with appropriate spaces for the class of ticket and the kinds of berth or seat, as the case might be, and a space for the signature and title of the countersigning officer. The face also contained a blank certificate of the receipt of the transportation and accommodations furnished, with a space for the signature and official title of the traveler, and below that a space for the name of the officer to whom the bill should be rendered. At the bottom of the face of the request were the words in black-face capitals: NOTE: FOLLOW STRICTLY THE INSTRUCTIONS ON REVERSE HEREOF. The instructions on the back contained, among other things in paragraph 4, spaces for the company and regiment of the traveler or travelers, for the authority on which the request was issued, and for the "nature of the journey." The notations on the backs of the requests disclosed that land-grant deductions amounting to $11,959.93 were made on account of discharged and retired soldiers, applicants for enlistment, discharged military prisoners, and soldiers on furlough. The notations also showed that $1,145.15 of land-grant deductions were on account of persons in the military service and $1,297.47 were land-grant deductions for persons whose status has not been shown by said notation. Of the $11,959.93 the sum of $2,263.55 is barred by limitations and the sum of $9,696.38 is now claimed by plaintiff. The only evidence in this case as to the status of the person transported was obtained from the notations on the requests. These remained in plaintiff's possession until his bills were rendered. The court decided that plaintiff was not entitled to recover. CAMPBELL, Chief Justice, delivered the opinion of the court: The only question for decision is whether the plaintiff can recover the amounts of certain deductions from its bills on account of land grant, where it appears that plaintiff presented its bills with land-grant deductions therefrom and they were paid as rendered, there being no protest or objection made by plaintiff when its bills were rendered or when it accepted payments of them as rendered. The original petition in this case sought recovery for land-grant Syllabus deductions from bills that plaintiff had rendered, and in all of them the land-grant deductions were made, but on part of these bills there were stamped protests against liability for land grant. On the others there was no protest on the bills nor protest or objection when the plaintiff was paid and accepted payment of them as presented. The bills mentioned as having protests stamped upon them were by plaintiff made the subject of a later suit, No. 34613, in this court, and for these protested bills plaintiff was awarded judgment in suit No. 34613 on June 28, 1920. See 55 C. Cls. 537. These items for which judgment was recovered are eliminated from the amended petition in the instant case. But having rendered its bills with land-grant deductions and been paid the amounts of them without protest or objection made either when the bills were presented or when they were paid, the plaintiff can not recover the amounts of these unprotested bills. See Southern Pacific Co. case, 268 U. S. 263, 268, and cases there cited. The petition should be dismissed. And it is so ordered. GRAHAM, Judge; HAY, Judge; DOWNEY, Judge; and BооTH, Judge, concur. ERNEST M. CRONIN v. THE UNITED STATES [No. C-912. Decided April 5, 1926] On the Proofs Navy pay; appointment from civil life.-Where plaintiff, having served his term of enlistment. is honorably discharged from the Navy July 12, 1912, at that time has no intention of reenlisting or again serving with the military or naval forces, and on August 1, 1912, accepts an appointment as paymaster's clerk, United States Navy, he is entitled to the credit of five years' constructive service provided for by the act of March 3, 1899, for officers appointed from civil life. Same; statute of limitations.-Under the circumstances recited, section 205 of the act of March 8, 1918, excluding from computation of the time within which suits may be brought by or against any person in military service the period of such service does not apply to the plaintiff. Reporter's Statement of the Case The Reporter's statement of the case: Mr. Cornelius H. Bull for the plaintiff. Mr. George A. King and King & King were on the briefs. Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. The court made special findings of fact, as follows: I. Plaintiff enlisted in the United States Navy July 13, 1908, for a period of four years. On July 12, 1912, while serving as an enlisted man his term of enlistment expired, and on that date he was given an honorable discharge from the service of the United States. II. Prior to and at the time of his discharge from the Navy on July 12, 1912, plaintiff had no intention of again enlisting in or serving with the military or naval forces of the United States but was preparing to engage in civil pursuits for his future livelihood. On August 1, 1912, the plaintiff accepted a temporary appointment as paymaster's clerk, United States Navy. III. The plaintiff in 1912 or 1913 applied for the payment of the amount which he claimed to be due him by reason of the alleged fact that he had been appointed from civil life. This claim was denied by the auditor, and the plaintiff appealed to the Comptroller of the Treasury, who affirmed the decision of the auditor. The plaintiff continued to contest the claim, but in 1919 the comptroller adhered to the decision of 1914. IV. Plaintiff has served continuously on active duty in the United States Navy from August 1, 1912, to the present date. In computing his pay after August 1, 1912, in addition to his four years of service as an enlisted man and during the entire period from August 1, 1912, to the present time plaintiff has been paid solely on the basis of actual service in the Navy. He has not been credited with five years' service as of August 1, 1912. If paid on the basis of actual service in the Navy plus a period of five years' constructive service from July 18, 1914, Opinion of the Court to the date judgment is rendered hereon plaintiff would be entitled to an additional sum of approximately $6,000. The court decided that plaintiff was entitled to recover. HAY, Judge, delivered the opinion of the court: The question for decision in this case is the proper construction to be given to the following provision contained in the act of March 3, 1899, 30 Stat. 1007: 66 * * all officers, including warrant officers who have been or may be appointed to the Navy from civil life shall, on the date of appointment, be credited, for computing their pay, with five years' service." The plaintiff enlisted in the United States Navy July 13, 1908, for a period of four years. On July 12, 1912, his term of enlistment expired and on that day he was honorably discharged from the service of the United States. On August 1, 1912, the plaintiff accepted a temporary appointment as paymaster's clerk, United States Navy. Prior to and at the time of his discharge from the service the plaintiff had no intention of again enlisting or serving with the military or naval forces of the United States. The evidence in the case, which is voluminous as to his intention, makes it certain that he had no such intention at the time of his discharge or prior thereto, and that he fully intended to enter civil life permanently. We are fully in accord with the principles laid down in the case of Barber v. United States, 50 C. Cls. 250, 255, 256. But we think that the circumstances of this case fully warrant us in deciding that the plaintiff was appointed to the position of paymaster's clerk from civil life. He was an enlisted man; he had taken steps to enter into civil pursuits upon his discharge, and it was not until his plans for that purpose had been foiled that he accepted the appointment. In the construction of the statute it seems to us that the circumstances of each case must be weighed, and when it is evident that there was no intention to remain in or to enter the service upon discharge or resignation, the person must be given the benefit of the statute, and we are of opinion that the plaintiff reentered the service after his discharge “from civil life" both within the spirit and the letter of the statute. |