
    DOUGLAS TRACTION & LIGHT COMPANY v. THE UNITED STATES
    [No. C-1251.
    Decided January 26, 1925]
    
      On the Proofs
    
    
      Contract; construction by parties; ruling of public utilities commission. — The construction of a contract by the parties and the ruling of a public utilities commission with power to establish rates for like service must prevail in the absence of evidence that such construction requires the Government to pay more than the general public.
    
      The Reporter's statement of the case:
    
      Mr. George R. Shields for the plaintiff. Messrs. Samuel Herrick and Marvin F arrington, and King c& King were on the brief.
    
      Mr. George H. Foster, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    
      The following are the facts as found by the court:
    I. The plaintiff is a corporation organized under the laws of the State of Alabama with its principal place of business in the city of Douglas in that State.
    II. In the contract dated 27th day of June, 1919, entered into between the United States, acting by its contracting officer, and the plaintiff, it was provided that the plaintiff during the period commencing with the 1st day of July, 1919, and ending with the 30th day of June, 1920, would furnish at such times and places as directed by the contracting officer on the military reservation of Camp Harry J. Jones, Arizona, certain electrical energy. Said contract provided that the contractor should furnish, install, maintain, calibrate, and read the meters used to measure the electric energy supplied and render monthly accounts to the contracting officer. It also provided for rates to be paid and for a renewal; that is to say, the contract provided that it should be in force until June 30, 1920, and thereafter as long as the needs of the public service should require, so as to give the United States continuous service; provided, however, that the contract was terminable upon written notice by either party upon thirty (30) days’ notice after June 30, 1920. A copy of the contract is made Exhibit A to the petition herein and is made a part of these findings by reference.
    III. Prior to the said contract, Exhibit A, there had been a contract between the same parties identical in terms and provisions for the furnishing by plaintiff of electric energy for use of Camp Harry J. Jones for several years prior to the date of the said contract. During the performance of this prior contract and at the request of the contracting officer of the United States plaintiff had installed thirty-one (31) meters for the registration of electric current used under said contract, one meter having been installed for each main building or group of buildings at said camp. All of these meters were in use at the camp throughout the fiscal year covered by the said contract ending June 30,1920. The entire distribution system for the distribution of electric energy installed at said camp, including pole .lines, wires,' meters, transformers, and service lines, installed by plaintiff to enable it to perform its contracts for furnishing electric current, was in place at the time the contract, Exhibit A, was made and was its property.
    IV. During the period covered by said contracts for.the time preceding the contract, Exhibit A, plaintiff rendered accounts monthly to the contracting officer at said Camp Harry J. J ones for electric current furnished and used, and these accounts were made on the basis of readings of individual meters and were paid by the contracting officer when and as rendered.
    Y. Plaintiff rendered accounts monthly to the contracting officer for electric energy furnished and used at said camp for the period January 1 to June 30,1920, and these accounts were based upon the readings of individual meters. To ascertain the amount of energy used it was necessary to read the individual meters. These accounts for the period between January 1 and Juné 30 were presented to a successor to the contracting officer, and this latter officer refused to pay the same on the ground that the accounts should be rendered on the basis of consolidated meter readings. Plaintiff refused to render accounts on this basis. The amount of the accounts rendered for said period on the basis of individual meter reading was $6,818.89. If the accounts for that period were based on consolidated meter readings the amount would be $4,867.20. /
    VI. The refusal of payment by the successor to the original contracting officer was based upon an advance opinion of the Comptroller of the Treasury communicated to the plaintiff on or about April 1, 1921. The plaintiff on October 21, 1921, filed with the General Accounting Office, War Department Division, its claim for $6,818.89. * On October 10, 1922, an allowance was made by that office in the sum of $4,867.20, which amount the plaintiff refused to accept. It applied to the Comptroller General for a review of said action, and on August 14, 1923, the ruling of the War Department Division Avas affirmed, and in addition thereto the Comptroller General found that on the basis of consolidated meter readings during the period from July 1 to December 31, 1919, plaintiff had been overpaid in the amount of $1,177.95, which amount was deducted, from the said amount of $4,'867.20, with the result that only the remainder, $3,689.25, was allowed. This latter amount was paid to the plaintiff, who received it under written protest, reserving to itself all rights of action in support of the amount claimed by it to be due under its contract. It was stipulated between counsel for the respective parties 'that the Arizona Corporation Commission ruled that in all cases where separate services were required by one consumer and when such service was separately metered bills should be rendered and paid on the basis of separate meter readings.
    The court decided that plaintiff was entitled to recover.
   Campbell, Chief Justice,

delivered the opinion of the court:

The plaintiff entered into a contract to furnish electric energy to the Government at Camp Harry J. Jones, Arizona, The electricity was furnished, and the parties agree that the sole question for decision arises upon the contract provisions relative to the proper basis for measuring the electric energy that was supplied. The plaintiff claims payment based upon individual meter readings, while the contention for the Government is that payment should be made on the basis of a consolidated reading of the several individual meters. By adding together the monthly readings of the several meters and applying the rates fixed by the contract the bills would have amounted to less than they were when based on these individual readings. As is stated in the Government’s brief, “ for a number of years plaintiff had furnished electrical service at the camp under contracts identical in form to the one herein concerned. Payments had been based on individual reading.” Plainly, therefore, the contractor could suppose that the new contract would receive a like construction. • When it was executed these individual meters, thirty-one in number, were in use by the Government; they had been installed by plaintiff under the direction of the Government’s contracting officer; they had to be maintained and inspected and read. They were placed at particular places under direction of the contracting officer for the convenience and to meet the purposes of the Government. If the purpose had been to require a pnntsnlidated reading and payment on that basis, the contract could have so provided, but if the Government had insisted on such a provision, the contractor could also have insisted upon payment of the additional charge and service and reading involved in the maintenance and use of the thirty-one separate meters.

The plaintiff’s construction of the contract was not only in accordance with the understanding that had prevailed between the parties but was in accordance with the ruling of the Arizona Utilities Commission as applied to individuals. It recognizes the existence and authority of that body in the provision (par. 16) “ change of rates,” thereby securing a reduction or an increase in accordance with rates subsequently established by the commission. The Government could have contracted for lower rates than it agreed to pay. It could have contracted for special rates or for consolidated readings of the thirty-one individual meters. In a later contract some changes were made, but the coptract under consideration recognizes and mentions that more than one meter was necessary and it fails to provide for any other reading than individual readings. We do not find that the Government has been made to pay more than individuals or the general public would have been required to pay under similar circumstances. We think the plaintiff is entitled to recover its charges as well as for the deduction made from its earlier bills. And it is so ordered.

Geaham, Judge; Hat, Judge; Downey, Judge, and Booth, Judge, concur.  