
    ARIZONA EASTERN RAILROAD CO. v. THE UNITED STATES
    [No. A-77.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Railroad rates; military impedimenta in Arizona, Federal and State; special rates io the State.- — -A rate of 2 cents per ton per mile on military equipment of the State of Arizona transported within said State is not applicable to Federal property, which, in the absence of distinctive rates, must take the rates open to the public for like transportation.
    
      The BeporiePs statement of the case:
    
      Mr. WilMami R. Harr for the plaintiff. Harr da Bates were on the brief.
    
      Mr. Lisle A. Smith, with whom was Mr. Assistant Attorney General Herirían J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a corporation and a common carrier of freight and passengers.
    II. During the years 1916 and 1917 the plaintiff, as sole or last carrier, upon due request made upon Federal Gov-eminent bills oí lading, transported certain Army impedimenta, the property of the United States, between points entirely within the State of Arizona.
    III. The schedule annexed to the amended petition herein correctly shows the Government bills of lading involved, the dates thereof, plaintiff’s bills or vouchers covering the same, the amounts claimed by the plaintiff in said bills or vouchers, and the amounts disallowed by the accounting officers of the Government with respect thereto.
    IY. (1) For a part of the aforesaid services the plaintiff presented bills to the defendant’s accounting or disbursing officers at the published commercial tariff rates open to the public for like or similar transportation, and through various adjustments, not here material, was paid by the defendant $12,281.20 less than plaintiff had claimed in its said bills, and this sum remains unpaid.
    (2) For the balance of the said services the plaintiff presented its bill to the defendant’s officers at a net cash rate published by it for special-train service. The plaintiff reduces its claim thereon to the basis of specific commércial rates for ordinary freight-train service. Through settlement by the accounting officer, the plaintiff was paid thereon $224.15 less than the amount due on said basis of specific commercial rates for ordinary freight-train service, and this sum remains unpaid.
    Y. For all the services so rendered the plaintiff was paid by the defendant freight charges at the rate of 2 cents per ton of 2,000 pounds per mile, published by the plaintiff in its tariff No. 20-B, pursuant to a law of the State of Arizona and an order of the corporation commission of said State, applying between all stations in Arizona on articles described in said tariff as follows: “ Military equipment consisting of arms, camp equipage, horses, materials, and stores, any quantity, * * * only when belonging to military department of the State of Arizona.”
    YI. Said shipments were all made upon the usual Government form of bill of lading prescribed by the Comptroller of the Treasury, and upon their accomplishment (except in the two instances referred to in the next paragraph), plaintiff presented the same to the disbursing or accounting officers of the defendant together with its bills or vouchers stating the charges for said transportation at the published freight tariff rates open to the public for like or similar transportation — that is to say, at what were known as the “ commercial ” rates.
    In the two instances above mentioned as exceptions (Government bills of lading WQ-84, dated July 23, 1917, and WQ-101, dated July 25, 1917), plaintiff stated its charges for the transportation involved (A. E. E. E. Co. bill F-1300) at the net cash rate published by it for special-train service. Prior to the trial of this case, however, plaintiff waived its claim that special-train service was requested and furnished in these two instances, and reduced its claim upon these items to the basis of the commercial rates for ordinary freight-train service.
    The court decided that plaintiff was entitled to recover $12,505.95.
   Campbell, Chief Justice,

delivered the opinion of the court:

The railroad company transported certain property of the Government between points within the State of Arizona. The shipments were made on Government bills of lading of approved form, and upon their accomplishment the plaintiff presented the same with its bills and charges, and the amounts claimed were reduced by the disbursing or accounting officers to the basis of the rate in a tariff published by plaintiff pursuant to a law of the State of Arizona for 1912 and an order of the corporation commission of that State. The rate thus provided was 2 cents per ton of 2,000 pounds per mile on military equipment consisting of arms, camp equipage, horses, materials, and stores, and to be applied, only to shipments belonging to the “Military Department of the State of Arizona ” and moving within the State.

The deductions by the Government officers from plaintiff’s bills were upon the theory that the Government was entitled to the rate provided by this intrastate rate which, in terms, applied to property of the State. The carrier was authorizect to make concessions to tbe State on intrastate shipments, and having seen fit to do so it did not thereby make the rate, so fixed, applicable to other property or a different shipper.

It has been said of section 22 of the act to regulate commerce, as amended, 25 Stat. 862, that it preserves the right of the carrier of granting in its discretion preferential treatment to particular classes in certain cases, among those classes named in the statute being the United States, State, and municipal governments, but “ it confers no right upon any shipper or traveller. Nor does it confer any new right upon the carrier.” Nashville Railway v. Tennessee, 262 U. S. 318, 323. (See note to this case (p. 321) relative to ruling of the Interstate Commerce Commission.)

The stipulation states that the plaintiff’s bills stated the charges for said transportation “ at the published tariff rates open to the public for like or similar transportation, that is to say, at what were known as the commercial rates.” The tariff has not been introduced in evidence but this stipulation covers the material question, in that it shows that the plaintiff’s bills were at the rates open to the public for like transportation. There were no rates distinctively applicable to property of the United States.

The Federal Government could have arranged with the company for a different and reduced rate if the company was so disposed. See Atchison, Topeka & Santa Fe Ry. Co. case, 256 U. S. 205, 206. It did not make any such provision or agreement, and we can only apply to its shipment a rate open to the public. This rate, according to the stipulation, was the one used by plaintiff in its bills. We conclude the plaintiff is entitled to judgment for the amount of the deductions. And it is so ordered.

Moss, Judge; Graham, Judge; Hat, Judge; and Booth, Judge, concur.  