Opinion of the Court. No. 499 AND No. 500. 270 U.S. No. 499 is an appeal by the United States from a judgment against it for $18,796.68. The amount here involved is $16,588.13. The transportation system of plaintiff, the Baltimore & Ohio Railroad Company, was taken over by the President December 28, 1917, and federal control continued until March 1, 1920. In 1916 and 1917, plaintiff and connecting carriers transported troops upon government transportation requests. Plaintiff, as initial carrier, presented bills therefor based on net per capita fares obtained by combinations only on the western gateways specified in the interterritorial military arrangements of 1916 and 1917. Payments amounting to $289,774.89 were made by the proper disbursing officer. Some of these payments, $172,210.31, were made to plaintiff before federal control. The balance were made during federal control to the Director General, and were credited to plaintiff. The Auditor of the War Department, in auditing the accounts of the disbursing officer, disallowed as overpayments on account of these bills, $20,978.45; and, at different times from March 12 to September 17, 1920, deducted from bills of the Railroad Administration the amount of the supposed overpayments. These deductions, to the amount of $16,588.13, were obtained by routing not authorized by the interterritorial military arrangements. The disallowances were held erroneous on the authority of Atchison &c. Ry. v. United States, 256 U. S. 205. The Government does not support them. The Court of Claims held that deductions made by the auditor amounting to $4,390.32 were proper; and, as no cross appeal was taken, they are not here involved. Of the total amount deducted, plaintiff refunded $13.58 to the War Department; and the Railroad Administration charged back to plaintiff $20,939.52 through the account "Federal assets collected," and $25.35 through the account "Corporate transactions." 320 Opinion of the Court. In December, 1921, the plaintiff paid into the trustee account, created in accordance with General Order No. 68, to the credit of the Administration, $20,939.52, and charged that amount against the War Department. July 27, 1922, there was a final settlement between the Director General and the plaintiff. That agreement, so far as concerns the Government's insistence that plaintiff released the claim in suit, contains the same language as that quoted in No. 401. The agreement also contains an exception in the same language, and having the same force and effect, as that quoted in No. 398. Our decisions in those cases are controlling here. No. 500 is also controlled by them. No. 36. This is an appeal by the plaintiff, the Pere Marquette, from a judgment that it is not entitled to recover. In 1917, plaintiff transported military impedimenta on Government bills of lading, and presented its bill, based on lawfully published tariffs less land grant deductions, amounting to $3,828.08. The disbursing officer paid that amount to plaintiff. Subsequently, the Auditor of the War Department, following a decision of the Comptroller, erroneously disallowed the full amount. The plaintiff's railroad was then under federal control, and the auditor deducted an equal amount from sums due the Railroad Administration for transportation in October and November, 1918. The Government does not support the auditor's disallowance of plaintiff's claim or the deduction of an equivalent amount from the Railroad Administration. July, 1920, in an adjustment of accounts between plaintiff and the Railroad Administration, the amount in question was credited by plaintiff to the Railroad Administration, and it remains outstanding on plaintiff's books as an unpaid balance on its bill, paid, but afterwards disallowed by the auditor. November 12, 1921, a final settlement 100569°-26—22 Opinion of the Court. 270 U.S. was made between the plaintiff and the Railroad Administration. The contract contains the same general language in respect of the purpose of the instrument as that considered in our decision in No. 401. This action was commenced, September 2, 1921, and on December 10, 1923, the Court of Claims gave judgment, citing Louisville & Nashville R. R. v. United States, and Philadelphia & Reading R. R. v. United States, decided in that court, November 5, 1923. But in the Louisville & Nashville Case the judgment was vacated; and, on rehearing, a judgment was entered in favor of the company, April 26, 1925. After the appeal in the case at bar, new trials were granted by the Court of Claims in other similar cases, which had been decided for the United States, and, January 5, 1925, judgment was entered for plaintiff in each. Appeals were taken by the United States; motions to advance were granted. This case and the others decided with it were argued and submitted at the same time. The Government contends that there is no finding that plaintiff repaid the Railroad Administration the amount erroneously deducted by the auditor; that the book entries are not sufficient evidence of repayment, and that it was the intention of the settlement agreement to include this claim as one growing out of federal control. But the finding is that plaintiff gave appropriate credit to the Railroad Administration, and that plaintiff's books show its bill has not been paid. General Order No. 66, General Order No. 68, and Accounting Circular 152 were promulgated by the Railroad Administration for general application. It is to be presumed that the rules there laid down were followed; that the amount in question was charged back to plaintiff on the federal books, and that settlement was made on that basis. Moreover, if it had been the intention of the settlement agreement to include this claim as one growing out of federal control, a consent 320 Argument for the United States. dismissal of this action, then pending, should have followed. Our decision in No. 401 controls this case. Judgments in Nos. 401, 402, 403, 404, 398, 399, 400, 499 and 500 affirmed. Judgment in No. 36 reversed. MR. JUSTICE HOLMES took no part in the consideration of these cases. UNITED STATES v. COHN. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 130. Submitted January 13, 1926.-Decided March 1, 1926. 1. Obtaining the possession of non-dutiable goods from a collector is not obtaining the approval of a "claim upon or against" the Government, within the meaning of § 65 of the Penal Code, as amended October 23, 1918. P. 345. 2. Neither is the wrongful obtaining of such goods from a collector a "defrauding" of the Government within the meeting of this section, since it deals with defrauding only in the primary sense of cheating out of property or money; therein differing from § 37, which extends to conspiracies to defraud in the secondary sense of obstructing governmental functions by fraudulent means. P. 346. Affirmed. ERROR to a judgment of the District Court sustaining a demurrer to an indictment. Solicitor General Mitchell and Assistant to the Attorney General Donovan were on the brief, for the United States. Under the facts as set forth in the indictment, the defendant was not entitled to make entry. Section 35 of the Penal Code, properly construed, applies to the fraud in this case. In the absence of decisions construing this section, we may properly resort to de Argument for the United States. 270 U.S. cisions under § 37, penalizing conspiracies to defraud the Government, which extends to all deceitful practices for procuring official action not warranted by law or regulations. United States v. Plyler, 222 U. S. 15; Haas v. Henkel, 216 U. S. 462; United States v. Barnow, 239 U. S. 74; United States v. Foster, 233 U. S. 515; Wolf v. United States, 283 Fed. 885; United States v. Brokerage Co., 262 Fed. 459; United States v. Fung Sam Wing, 254 Fed. 500; Curley v. United States, 130 Fed. 1; Hammerschmidt v. United States, 265 U. S. 182. The possession of valuable goods has been surrendered. It makes no difference that the ultimate title was not in the Collector or in the United States, or that the goods were entitled to entry as "free goods" without the payment of duty, under Art. 192 of the Customs Regulations of 1915. They were none the less required to be entered, and the Collector was entitled to custody of them in the orderly administration of the revenue laws. Of that possession he has been deprived by."deceit, craft, or trickery." It is submitted that, under every test known to the law, a fraud has been perpetrated, and that it is properly punishable under § 35 of the Penal Code. Section 35 of the Penal Code, as amended, is no longer restricted to frauds committed in the presentation of "claims" against the Government, but, by the amendment of 1918, the scope of the section was materially widened; and the element of a "claim" is no longer essential. The section punishes the concealment or misrepresentation of material facts whenever the defendant's purpose is to obtain the payment or approval of a claim, or to cheat and swindle or defraud the United States or any department thereof. Even if the element of a "claim" is held necessary to establish a case, that element is here present. Bouvier L. Dict. Vol. 1, p. 332; Co. Litt. 291b; Prigg v. Pennsylvania, 16 Pet. 539; Cornell v. Travellers' Insurance Co., 175 N. Y. 239. It |