
    ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. THE UNITED STATES
    [No. A-319.
    Decided February 11, 1924]
    
      On the Proofs
    
    
      Railroad rales; special service: uyrceil rale. — Where proposals for bids for armor plate call for transportation in “ special drop girder cars,” it is a special service for which the plaintiff is entitled to recover at the rate agreed upon between the Government and the plaintiff.
    
      The Reporter's statement of the case:
    
      Mr. Lawrence A. Cake for the plaintiff. Britton c& Gray were on the brief.
    
      Messrs. Perry W. Howard and Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Robert PL. Lovett, for the defendant.
    The following are the facts of the case as found by the court:
    
      I. The plaintiff is a corporation duly incorporated under the laws of the State of Kansas. At the times of the different transactions hereinafter set out in these findings of fact the plaintiff operated, and still operates, a system of railroads extending from Chicago, Illinois, to San Francisco and San Diego, California, with branch lines and extensions connecting therewith, doing business as carrier of passengers for hire and reward under tariffs duly filed with the Interstate Commerce Commission by it and by its connecting lines, with its concurrence, and published as provided by laAV.
    II. On February 28, 1917, the general agent of plaintiff at Pittsburgh, Penns3Tlvania, wrote Lieutenant Commander E. E. Adams, naval inspector of ordnance at Munhall, Pennsylvania,' as -follows:
    
      “ Confirming telephone conversation quoting1 rate on armor plate Munhall, Homestead, and Pittsburgh to Mare Island, I am pleased to quote lowest net cash rate of $1,724 per 100# from Pittsburgh, Munhall, and Homestead to San Francisco, plus arbitrarles San Francisco to Mare Island as specified in Mr. Van Doorirs letter to you December 26. 1916.
    “ Please acknowledge receipt and oblige.”
    III. On Government bills of lading numbered 734, 735, and 736. dated, respectively, March 14,16, and 22,1917, the plaintiff and connecting carriers transported from ’ Munhall. Pennsylvania, to the United States Navy Yard at Mare Island, California, 280,200 pounds of armor plate. In due course as last earner the plaintiff presented to the proper disbursing officer of the Navy its bill No. 705048 for the sum of $5,391.04, based on said bills of lading 734, 735, and 736. On each of said bills of lading when so presented were endorsed the words and figures: “ Freight rate $1.724 per cwt.” in red ink without the authentication required by the instructions on the reverse side of said bills.
    The bill 705048, presented as aforesaid by plaintiff to the disbursing officer for $5,391.04, was arrived at by using $1.724 per cwt. as the rate from Munhall to San Francisco, plus the arbitrary of 20 cts. per cwt. from San Francisco to Mare Island. The disbursing officer, upon the authority of the letter from the naval inspector of ordnance, dated May 2, 1917 (Finding IV), paid said bill in the sum of $4,667.01, arrived at by using $1.4656 per cwt. as the rate from. Munliall to San Francisco and the arbitrary of 20 cents per cwt. from San Francisco to Mare Island, a deduction of $724.03 from the bill as presented. When the auditor came to audit the accounts of the disbursing officer he disallowed $3,001.50 of the $4,667.01 paid by the disbursing officer as aforesaid, and checked the same against his account. The amount so disallowed, $3,001.50, was arrived at by using the commodity rate of 7o cents per cwt. from Munliall to Oakland Wharf, plus 5 cents per cwt. from Oakland Wharf to Mare Island given to the general public in 1450-E of - Supplement 15 to Transcontinental Freight. Bureau Westbound Tariff No. l-O. E. H. Countiss’ I. C. C. No. 1019, effective March 6, 1916, less proper land-grant deductions, leaving as the amount paid to plaintiff on said bill 705048 tlie sum of $1,665.51. The disbursing officer in order to protect himself against said disallowance on Apiil 9, 1920, deducted the amount, $3,001.50, from other bills of plaintiff presented to him.
    The company filed a supplemental claim with the Auditor for the Navy Department for the amounts deducted from the original bill No. 705048, which was disallowed in its entirety on June 3, 1921. There was endorsed on the supplemental claim a statement that “shipment moved on special bid rate, of $1,724, and that the tariff item above cited does not apply, and that concurrence is accordingly withheld.” There is no record of an appeal to the. Comptroller or Comptroller General.
    IV. On March 5, 1917, Lieutenant Commander Adams, naval inspector of ordnance at Munhall, Pennsylvania, wrote to the general agent of plaintiff at Pittsburgh, Pennsyl-A'ania, as folloAvs:
    “ 1. In vieAv of the fact that the freight schedule for armour for transcontinental shipment will be changed on April 20, 1917, from class No. 3 rate of $2.60 to class No. 4 rate of $2.20 per cwt., I have been directed by the Bureau of Supplies and Accounts to request bids for the transportation of about 6,000 tons to -the Navy Yard, Mare Island, California.
    
      “ 2. About 2,700 tons of armour will be ready at tbe works of tbe Carnegie Steel Company, Munhall, Pa., between April 25, 1917, and July, 1918..
    “ 3. About 3,300 tons of armour will be ready at tbe works of tbe Bethlehem. Steel Company, South Bethlehem, Pa., during the same period.
    
      “ 4. A number of plates from the two plants will require special drop-girder cars in order to transport them across the continent. In awarding contract, special allowance will be paid to the railroads which can furnish the required equipment for these heavy plates. These drop-girder cars will be fitted with structural steel and wood cradles bolted to the cars at the works of the manufacturer, and I desire a statement from the bidder that these cars will be returned as soon as possible after delivery of armour without charge to the Government and without charging freight for any part of cradle which is bolted to car and thus forming part of car, for the purpose of shipping armour.
    “ 5. The contractors for the armour will deliver f. o. b. works. Delivery by transportation company f. o. b. cars, Mare’Island Navy Yard. Shipments will be made in carload lots from the armour manufacturer.
    “ 6. Material when shipped will be Government property and entitled to all land-grant reductions.
    “ 7. Proposals to receive consideration must be mailed in sufficient time to'be received in this office by March 13, 1917. They should be enclosed in an envelope, sealed and marked ‘ Proposal,’ and then placed in a mailing envelope, addressed to the Naval Inspector of Ordnance IT. S. N., Munhall, Pa.
    “ 8. In case bids for the same rate are received, extra consideration will be paid to those roads which can guarantee quick delivery of armour and quick return of empty drop-girder cars.
    “ 9. Proposals will be forwarded to the Bureau of Supplies and Accounts and contract will be awarded in Washington.”
    On March 10, 1917, the foreign freight agent, of the plaintiff at Chicago, Ill., replied to the above letter of Lieutenant Commander Adams as follows:
    “ In response to your favor of March 5th, reference 437-(359)-Cont. 522 addressed to Mr. E. F. Lalk, general agent, this company, Pittsburgh, Pa., requesting bid for transportation of about 6,000 tons of armour plate to the navy yard, Mare Island, Calif., 2,700 tons of which will be ready at the works of the Carnegie Steel Company, Munhall, Pa., between April 25, 1917, and July, 1918, and the balance, namely, 3,300 tons, to be ready at the works of the Bethlehem Steel Company, South Bethlehem, Pa., during the same period: I beg to quote you for account of this company upon armour plate, carloads, Munhall, Pa., to San Francisco, net cash rate of $1.4656 per hundred pounds, minimum carload weight 36,000 pounds; this net cash rate to be applicable effective with shipments moving on and after Apiúl 20,1917, this being the effective date for the change in the classification upon armour plate from 3d tp 4th class rate.
    “ In addition to the above rate the net cash rate from San Francisco to Mare Island upon individual pieces or packages 'weighing less than 500 pounds each is 5c per hundred pounds; upon individual pieces or packages weighing less (han 500 pounds each and not over 4,000 pounds each, 6c per hundred pounds; upon individual pieces or packages weighing over 4,000 pounds each, and 'less than 10,000 pounds each, 12c per hundred pounds; and upon individual pieces or packages weighing 10,000 pounds each and over 10,000 pounds each, 20c per hundred pounds; these arbi-iraries applying on lots of 20,000 pounds or more.
    “ The above rates are all net cash and are not subject to any further land-grant or bond-aid deduction.
    “ The routing in connection with the above-named rates will be via such lines as we may designate from Munhall, Pa., or via whatever lines you may prefer to route over providing the lines you prefer to use will protect the lowest land-grant proportion up to Chicago and via the Sante Fe System from Chicago to Mare Island, California.
    “ In regard to the 3,300 tons of armour plate to be shipped from the works of the Bethlehem Steel Company at South Bethlehem, Pa., will say that the net cash rate on this movement will be quoted you by Mr. C. H. Morehouse, general eastern freight agent of this company at New York City, in whose territory South Bethlehem, Pa., lies.
    “In regard to return of equipment furnished for the transportation of this armour plate, will say that Ave will see that cars are hurried East to initial carriers just as soon as cars are released on the Pacific Coast, and that on the return moA’ement of this equipment the rail carriers Avill be paid the usual mileage charge, in addition to the net cash rates named.
    “In the e\Tent that the above quotation is accepted, I. will ask that you kindly advise me in order that we may issue necessary instructions to coA^er the protection of the rates quoted.”
    On March 12, 1917, the general eastern freight agent of plaintiff at New York replied to the same letter of Lieutenant Commander Adams as follows:
    
      “ Referring to your letter of March 5th, addressed to E. F Lalk, general agent of this company at Pittsburgh, Pa., your reference No. 437-(No. 359)-Cont. No. 522, requesting rates for the transportation of 3,300 tons of armour plate for Mare Island Navy Yard, Cal., to move from the works of the Bethlehem Steel Company, Soxxth Bethlehem, Pa., between April 25th, 1917, and July, 1918.
    ‘‘ I beg to quote for the account of the Sante Fe System on armour plate, carloads, South Bethlehem, Pa., to San Francisco', Cal., net cash'rate of $1.278 per 100 lbs., minimum carload weight 36,000 pounds, this rate to apply on shipments moving on and after April 20th, 1917. In addition to the above rate I beg to quote .from San Francisco, Cal., to Mare Island, Cal., on individual pieces or packages weighing less than 50Ó pounds each net cash rate of 5c. per hundred pounds; on individual pieces or packages weighing 500 pounds each and not over 4,000 pounds each net cash rate of 6c. per hundred pounds; upon individual pieces or packages weighing 4,000 pounds each and less than 10,000 pounds each net cash rate of 12c. per hundred pounds; and upon individual pieces or packages weighing 10,000 pounds each and over 10,000 pounds each net cash rate of 20c. per hundred pounds. The arbitrarles from San Francisco to Mare Island apply on lots of 20,000 pounds or more.
    “ The above rates are all net cash and are not subject to any further land grant or bond aid deduction.
    “ The carriers agree to transport special equipment and to return same with fixtures promptly after release free to originating point or initial road providing the Government will assume the regular per diem rates assessed by owners of the equipment, this being due to the fact that the carriers would be deprived of the use of the equipment for return loading.
    “ We also wish to provide that on any pieces requiring special equipments or alteration of equipment the Government will assume any extra charges for same. Full routing will be given upon acceptance of bid.”
    On May 2, 1917, Lieutenant Commander Adams, naval inspector of ordnance, by direction, forwarded to the general agent of plaintiff at Pittsburgh, Pa., a letter received by him from the Bureau of Supplies and Accounts, signed by Paymaster General McGowan:
    “ 1. The following letter has been received from the Bureau of Supplies & Accounts:
    “ ‘Award for this transportation will be made to the Santa Fe, Missouri Pacific, Union Pacific, Southern Pacific, Chi-ago, Milwaukee & St. Paul and the Chicago & North West-em Railroads, each road to receive as nearly as possible an equal pai't of the movement. Inspector of Ordnance will notify carriers accordingly.
    
      “ ‘ Tbe rate to be $1.4656 per cwt., from Munliall to Mare Island plus tbe usual arbitrary from San Franciscoto Mare Island. Tbe equipment with blocking and cradles intact to be returned to point of origin free except that' tbe Government will pay tbe per diem rate assessed by tbe carrier owning tbe equipment. It is assumed that the per diem rate will be 75 cents up to and including 30 of May 1917, and 45 cents thereafter until ultimate delivery of cars to tbe initial line.
    
      “ ‘ Bills of lading will contain statement that shipments consist of armour for tbe CALIFORNIA and that charges are payable from appropriation “ Increase of the Navy, A&A.” Reference will also apear on the bills of lading as to tbe carrier to which payment will be made and the agreed rating, the last carrier to promptly transmit the bills of lading to the carrier indicated.
    “£(S) McGowan.’
    “ 2. In accordance with the above your railroad will have one-sixth of the shipment of armour between Munliall, Pa., and Mare Island, Calif.
    “Very truly vours,
    “ (Signed) R. R. Adams.”
    Y. On Government bills of lading Nos. 752, 755, and 757, dated May 12, 15, and 16, 1917, respectively, the plaintiff and connecting carriers transported for the Government from Munliall, Pennsylvania, to the United States navy yard at Mare Island. California, via San Francisco, California, 484,000 pounds of armor plate. In due course the plaintiff, as the last carrier, presented its bill No. 706041 to the proper naval disbursing officer for payment for such services, together witli said bills of lading Nos. 752, 755. and 757, on each of which ivas endorsed when presented: “Agreement with A., T. & S. F. rate $1.4656 per cwt., plus 20c. arbitrarles, total, $1.6656.” The bill, No. 706041, was rendered for $8,061.49, and was computed by using the rate of $1.4656 per cwt. from Munliall to San Francisco, and the arbitrary of 20 cents per cwt. from San Francisco to Mare Island. On August 17, 1917, the said bill was paid in full by the naval disbursing officer in the sum of $8,061.49. When the accounts of the said disbursing officer came up for audit the Auditor of the Navy Department disallowed $5,184.59 of the amount paid by said disbursing officer, $8,061.49, to plaintiff as aforesaid, and checked the same against the said disbursing officer’s account, who in order to relieve himself from the charge on March 3, 1920, deducted the said disallowance of $5,184.59 from other bills of plaintiff presented to him for payment. The said dis-allowance was computed by the Auditor for the Navy Department in the same way as his disallowance in Finding-Ill. The amount paid on bill 106,041 was $2,876.90.
    VI. On Government bills) of lading Nos. N-128 and X-141. dated May 5 and 12, 1917. respectively, the- plaintiff and connecting carriers transported for the Government from South Bethlehem, Pennsylvania, to the United States navy yard at Mare Island, California, via San Francisco, California, 783,120 pounds of armor plate. ’ In due course plaintiff presented its bill, No. N-706042, to the proper naval disbursing officer, together with said bills of lading Nos. N-128 and N-141, on each of which when so presented was indorsed: “ $1,278 per 100 lbs.” The bill No. N-706042 was rendered for $11,574.51, and was computed by plaintiff by using the rate of $1,278 from South Bethlehem to San Francisco, plus the arbitrary of 20 cents per cwt. from San Francisco to Mare Island. On August 17, 1917, the naval disbursing officer paid the bill in full as presented in the sum of $11,574.51. In the audit of the disbursing officer’s accounts the Auditor for the Navy Department disallowed $6,800.48 of the payment of $11,574.51 made to plaintiff by the said disbursing officers, upon the same grounds as the disallowance made by that official in Finding III. The disbursing officer thereafter recouped the disallowance by deducting, on March 3, 1920, the same amount from other bills of plaintiff presented to him for payment. The plaintiff presented a claim to the Auditor for the Navy Department for the amount deducted by the disbursing officer to cover said disallowance, on which the Auditor, on August 30, 1921, allowed $5.04. There was a protest endorsed on this claim “that shipment moved on a special bid rate of $1,278 per cwt. to San Francisco, plus barge charges to Mare Island according to tariff 8117-F, I. C. C. 7334, of the Atchison, Topeka & Santa Fe coast lines, and that the tariff rate used by the accounting officers did not apply.” The deductions made by the auditor as finally adjusted amounted to $6,795.4b, and the amount paid on the bill was $4,779.07.
    VII. On Government bills of lading Nos. 750 and 754, dated May 5 and 14, 1917, respectively, plaintiff and connecting carriers transported 459,220 pounds of armor plate from Munhall, Pa., to the United States navy yard at Mare Island, Calif., and on Government bill of lading No. N-133, plaintiff and comiecting carriers transported 898,932 pounds of armor plate from South Bethlehem, Pa., to the United States navy yard at Mare Island, Calif., via San Francisco. In due course the plaintiff presented its bill No. 707217 to the proper naval disbursing officer for payment, together with said bills of lading Nos. 750, N-133, and 754. On bills of lading 750 and 754 were endorsed the words and figures: “ Agreement with A. T. & S. F: rate 1.4656 per cwt.., plus 20c arbitrarles, total 1.6656 per cwt.on bill of lading N-133 were endorsed the words and figures: “$1.278 per 100 lbs.” The bill No. 707217, was rendered for $22,621.37 and was erroneously computed by multiplying the total weight of the armor plate transported on the three bills of lading, 1,358,152 by $1.6656, instead of computing the weight transported under bills of lading 750 and 754 by $1.6656 and that transported under bill of lading N — 133 by $1.478, and adding the two results. The corrected bill amounted to $20,934.98. On September 21, 1917, the naval disbursing officer paid the corrected bill N-707217 for $20,934.98 in full. Thereafter the Auditor for the Navy Department, in auditing the said disbursing officer’s accounts, disallowed $12,862.12 of the $20,934.98 paid by the said disbursing officer to the plaintiff upon the same grounds as the disallowance in Finding No. III. Thereupon the plaintiff filed a supplemental claim with the auditor for the amount of said disallowance, and in said claim contended that it had a right to a rate of $1.4656 from Munhall to San Francisco plus barge charges to Mare Island and a rate of $1.278 from South Bethlehem to San Francisco plus barge charges to Mare Island. On August 30, 1921, the Auditor for the Navy Department allowed $140.13 on said claim, reducing the said disallowance from $12,802.12 to $12,721.99, and charged the same against the account of the said disbursing officer. The said disbursing officer, in order to relieve himself from this charge, on March 3, 1920, deducted the disallowance of $12,721.99 from other bills of plaintiff presented to him for payment. The total amount paid on plaintiff’s said bill N-707217 was $8,212.99.
    VIII. On Government bills of lading Nos. 765 and 769, dated June 13 and 22, 1917, respectively, the plaintiff and connecting carriers transported for the Government from Munhall, Pa., to the United States navy yard at Mare Island, Calif., via San Francisco, Calif., 323,860 pounds of armor plate. In due course plaintiff presented its bill N-708223, together with said bills of lading Nos. 765 and 769, to the proper naval disbursing officer, on each of which bills of lading when so presented was endorsed: “Agreement with A. T. & S. F. rate 1.4656 per cwt., plus 20c arbitraries, total 1.6656 per cwt.” The bill N-708223 was rendered for $5,394.20, and was computed by using the rate of $1.4656 per cwt. from Munhall, Pa., to San Francisco, Calif., plus 20 cents per cwt. from San Francisco to Mare Island. The bill N-708223 was paid by the naval disbursing officer as rendered in the sum of $5,394.20 on October 22, 1917. The Auditor for the Navy Department in auditing the accounts of the said disbursing officer disallowed $3,469.17 of the amount, $5,394.20, paid by the said disbursing officer to plaintiff upon the same grounds as the disallowance in Finding III. The amount so disallowed was charged by the auditor against the account of said disbursing officer and recouped by him on November 3, 1920, from other bills of plaintiff presented to him for payment. There has been paid to plaintiff by the Government on bill N-708223 the sum of $1,925.03. There is no record of any claim having-been filed with the auditor for the amount so disallowed and afterwards collected*by the disbursing officer, nor of any protest filed against such action of said disbursing officer.
    IX. On Government bill of lading N-17, dated July 17. 1917, plaintiff and connecting carriers transported for the Government 317,340 pounds of armor plate from South Bethlehem, Pa., to the United States navy yard, at Mare Island, Calif., via San Francisco, Calif. In due course plaintiff presented its bill N-710210, together with said bill of lading N-17, to the proper naval disbursing officer. On said bill of lading N-17, when so presented, were endorsed the following words and figures: “ $1.278 per 100 lbs. F. L. Fussell file 204800-10, 5-1-17.” The said bill N-710210 was rendered for $4,690.28, computed by using the rate $1.278 per cwt. from South Bethlehem, Pa., to San Francisco, and 20 cents per cwt. from San Francisco to Maré Island. The bill was paid by the said disbursing officer in full as presented on December 22, 1917. On submission of the accounts of the said disbursing officer for audit, the Auditor for the. Navy Department disallowed $2,654.51 of the amount, $4,690.28, paid by the said disbursing officer to plaintiff, upon the same grounds as the disallowance in Finding III, and charged the said disallowance to the account of said disbursing officer, who, in order to relieve his account from said charge, on November 3, 1920, deducted said disallowance, $2,654.51, from other bills of plaintiff presented to him for payment. The plaintiff thereafter filed a claim for part of the amount so disallowed by the auditor and collected by the said disbursing officer, and stated as the ground for such claim “ that shipment moved on ‘ special bid rate furnished by Mr. F. B. Houghton,5 and that the rate applied by the Government was erroneous.” There was allowed on said claim 83 cents, which was paid on August 30, 1921, thereby reducing the disallowance of the auditor and subsequent deduction by the disbursing officer to $2,653.68.
    There has been paid on said bill N-710210 by the Government to the plaintiff the sum of $2,036.60.
    X. The plaintiff’s bills N-705048, N-706041, N-706042, N-707217, N-708223, and N-710210, computed bv using the rate $1.4656 per cwt. from Munhall, Pa., to San Francisco, Calif., plus 20 cents per cwt. from San Francisco to Mare Island, Calif., and by using the rate $1.278 per cwt. from South Bethlehem, Pa., to San Francisco, plus 20 cents per cwt. from San Francisco to Mare Island, amounted in the aggregate to $55,322.47. There has been paid on said bills $21,496.10, leaving a balance oí $33,826.37 due if said rates were properly applied.
    XI. The shipments were all made on the standard form of Government bills of lading and all statements of account made by •plaintiff against the United States were on the form prescribed by the comptroller under the Dockery Act. (Sec. 5, act of July 31, 1894, 28 Stat. 206.)
    XII. The rates claimed by plaintiff as the proper rates to apply to the above shipments, $1.4656 per cwt. between Mun-hall, Pa., and San Francisco, Calif., and $1.278 between South Bethlehem, Pa., and San Francisco, and 20 cents per cwt. between San Francisco and Mare Island, Calif., were lower than the class rates, less land-grant deductions in force at the time and on the lines over which the said shipments were made. The rates under the commodity tariff, #1450-F of Supplement 15 to Transcontinental Freight Bureau Westbound Tariff No. 1-0. B. IT. Countiss’ I. C. C. No. 1019, effective March 6, 1916,” in force on said lines at the time of said shipments, showed, among other things, a rate on iron and steel plate, No. 11 and heavier, punched or un-punched, bent or. unbent, and the applicable barge rate from Oakland, Calif., wharf to Mare Island. A note to said tariff is as follows: “Note. — The following list enumerates only such articles as are given specific rates; articles not specified will take class rates.” In this list was, among other things, included iron and steel plate as above mentioned, which was given the commodity rate of 75 cents per cwt. The rate allowed by the auditor was the rate authorized for articles of iron and steel, among which were mentioned beams, columns, girders, plate (No. 11 and heavier), etc. There is also another note to said tariff which reads: “Note.— Bates named under head of ‘Iron and steel articles’ will not apply on the following quartermaster and ordnance stores: Armor plate, deck plates, conning towers, conning-tower tubes, turret tubes, signal towers and siding hoods. Class rates will apply on the above-mentioned articles.” The auditor applied these commodity rates less land-grant making his disallowances and charges against the account of the disbursing officer.
    XIII. The plaintiff in no instance appealed from the action of the Auditor for the Navy Department to the comptroller. The comptroller first passed upon the validity of the second note to the commodity tariff quoted in Finding XII in a manuscript opinion rendered August 13, 1918, as follows: “ This exception is made to apply on quartermaster and ordnance stores as specified. It is a recognized principle that an exception to tariff rates requiring higher charges to be paid on Government shipments can not be regarded as binding as the Government is entitled to as favorable rates as the general public. There appears to be no justification for higher rate claimed for the transportation than applies generally to articles of iron and steel. The auditor’s action on this item appears justified and is affirmed.”
   Campbell. Chief Justice,

delivered the opinion of the court. .

The railroad company claims, and the evidence establishes, that its bills as stated by if were paid by the Government’s disbursing officer, and afterwards the Auditor for the Navy Department in settling the disbursing officer’s accounts checked these payments and made deductions therefrom which were subsequently collected by the disbursing officer’s making deductions of similar amounts from other proper bills of the railroad company. The basis of these deductions as made by the auditor was that the rates charged for transporting the armor plate were, higher than the commodity rate fixed in the railroad company’s tariff schedule. It appears that the rates under the commodity-tariff effective on the company’s and connecting lines at the time of the shipments were 75 cents per hundredweight from Munliall and South Bethlehem to Oakland Wharf on iron and steel plates, these articles being given specific rates, but the tariff schedule also carried a note to the effect that the list enumerated only such articles as were given specific rates, and this list included beams, braces, columns, girders, plate, etc. The note also stated that articles not specified would take class rates. A further note on the tariff was to the effect that the stated rates under head of “ Iron and steel articles ” would not apply on certain quartermaster and ordnance stores, mentioning armor plate, deck plates, conning towers, and-others, as to which the note said: “ Class rates will apply on the above-mentioned articles.” The class rate if applied to the armor plate was more than the rate actually charged by the railroad company. The commodity rate, if armor plate be given the rate mentioned for beams, girders, plate, etc., would be less than the rate actually applied, and the rate actually applied was that agreed upon before the shipments were made. We have held that a railroad company can not by merely filing a schedule of tariff rates, naming a rate applicable to Government property, bind the Government to pay rates higher than those open to the public for a similar service. It was then said: “ There is no statute requiring or even providing for the publishing by a transportation company of a schedule of rates or a special rate applicable alone to Government property.” Illinois Central R. R. Co. case, 58 C. Cls. 182. The tariff in question expressly provides that certain enumerated articles took the commodity rate while others would take the class rate, but armor plate was not mentioned among the articles given specific rates. The auditor ruled that the armor plate should have the rates given to beams, braces, columns, girders, plate, etc., in the list, and therefore should be classified with these articles which took the commodity rate. The question of classification is, under the view we take, practically eliminated and need not be discussed further than to say that whatever the proper classification should be, if that were the question, we think that the tariff in question by the second note above mentioned intended to exclude Government armor plate from the commodity rate on iron and steel plate and therefore to leave such armor plate without a specific rate. But, as already said, the company can not by merely distinguishing between property of an individual and Government property establish a rate binding on the Government.

In the instant case, however, there was an agreed rate for a special service. See Missouri Pacific R. R. case, 56 C. Cls. 341. In calling for proposals for transporting the armor plate the Bureau of Supplies and Accounts in their notice clearly indicate that their understanding was that the freight schedule for armor for transcontinental shipment was at that time a class rate mentioned in their call for bids and not a commodity rate. They desired a cheaper rate. (See Finding IV.) It was stated in the call for bids that a number of the plates would require “ special drop girder cars in order to transport them across the continent” and that in awarding the contract special allowance would be made to the railroads furnishing “ the required equipment for these heavy plates.” Structural steel and wood cradles bolted to the car at the works of the manufacturer were to be used and the bidder was required to agree that these cars would be returned as soon as possible after delivery of the armor without charge to the Government and without charging freight for any part of the cradle so bolted to the car. In addition to this, the call for bids indicated that consideration would be given them in guaranteeing quick delivery of armor and quick return of empty drop-girder cars. Plaintiff’s agents in submitting'its bids for the service, one from Munhall and the other from South Bethlehem to San Francisco and then to Mare Island, responded to this feature. This was the, service which was called for and bid upon. The rate named by the carrier was acceptable to the bureau. The shipments moved as contemplated and the bills, based upon the agreed rate, were paid. There is no basis for the defense of the statute of limitations. The deductions complained of were made from subsequent bills of the plaintiff. Its original bills having been paid it had no complaint until these deductions were made. When this occurred its right of action first accrued, but this did not occur until 1920, or about that time. The Government offers no further defense, and we think it clear that the plaintiff should recover judgment for the special service at the rate agreed upon.

Judgment for plaintiff in the sum of $33,826.37. And it is so ordered.

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