B-70977, JANUARY 19, 1948, 27 COMP. GEN. 380

B-70977: Jan 19, 1948

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IS ENTITLED TO THE BENEFIT OF TARIFF RATES AVAILABLE TO THE PUBLIC. YOU URGE THAT SAID RATE IS APPLICABLE ON ONLY COMMERCIAL SHIPMENTS AND THAT THE RATE TO BE USED IN COMPUTING THE CHARGE OF A GOVERNMENT SHIPMENT IS THAT PROVIDED IN ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16 SERIES. THERE WOULD APPEAR NO QUESTION BUT THAT THE RATE OF ?035 PER 100 POUNDS WOULD HAVE BEEN APPLICABLE ON A COMMERCIAL SHIPMENT STORED IN TRANSIT FOR THE SAME TIME AND PERIOD THAT THE INSTANT GOVERNMENT SHIPMENT WAS IN STORAGE. THAT THE CARRIERS MAY NOT BE TARIFF PROVISIONS EXCLUDE THE GOVERNMENT FROM THE RIGHT TO THE APPLICATION OF RATES OPEN TO THE PUBLIC AT LARGE IS ELEMENTAL. WHERE THE COURT STATED: " WE HAVE HELD THAT A RAILROAD COMPANY CANNOT BY MERELY FILING A SCHEDULE OF TARIFF RATES.

B-70977, JANUARY 19, 1948, 27 COMP. GEN. 380

TRANSPORTATION - STORAGE IN TRANSIT - AVAILABILITY TO GOVERNMENT OF TARIFF RATE APPLICABLE TO PUBLIC INASMUCH AS THE EFFECT OF A SO-CALLED SECTION 22 QUOTATION, TENDERED BY CARRIERS FOR USE IN COMPUTING CHARGES FOR THE STORAGE OF GOVERNMENT PROPERTY IN TRANSIT, WOULD BE TO REQUIRE THE PAYMENT OF A HIGHER RATE THAN THAT AVAILABLE TO THE PUBLIC AT LARGE UNDER DULY FILED TARIFFS FOR LIKE STORAGE, THE HIGHER CHARGES SO TENDERED MAY NOT BE PAID, IT BEING WELL ESTABLISHED THAT THE GOVERNMENT, LIKE ANY OTHER SHIPPER, IS ENTITLED TO THE BENEFIT OF TARIFF RATES AVAILABLE TO THE PUBLIC.

ASSISTANT COMPTROLLER GENERAL YATES TO THE CHESAPEAKE AND OHIO RAILWAY COMPANY, JANUARY 19, 948:

CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST FOR FURTHER REVIEW OF SETTLEMENT NO. 252800 1/2 DATED OCTOBER 24, 1945, WHICH DISALLOWED YOUR CLAIM, PER SUPPLEMENTAL BILL 2-64864 11/43, FOR $5.73 ADDITIONAL TO $20.07 PREVIOUSLY PAID ON VOUCHER NO. 871139 OF THE DECEMBER 1943 ACCOUNTS OF MAJOR M. B. HALE, ARMY DISBURSING OFFICER, AS CHARGES FOR THE STORAGE IN TRANSIT OF A SHIPMENT OF TENTS ORIGINALLY MADE FROM TOLEDO, OHIO, TO COLUMBUS, OHIO, UNDER BILLS OF LADING WQ-8465526 AND WQ-8465527, OCTOBER 17 AND 22, 1942, AND RESHIPPED FROM COLUMBUS TO NEWPORT NEWS, VIRGINIA, FOR EXPORT, OCTOBER 25, 1943.

YOUR OBJECTION TO THE SETTLEMENT RELATES TO THE USE, IN COMPUTING THE ALLOWABLE CHARGES ON THIS SHIPMENT, OF THE RATE PUBLISHED IN AGENT B. T. JONES' TARIFFS NO. T-1, I.C.C. NO. 3725, AND NO. T-1-A, I.C.C. NO. 3752 STATED THEREIN AS BEING FOR APPLICATION IN CONNECTION WITH THE STORAGE IN TRANSIT OF COMMERCIAL FREIGHT IN CARLOADS, SAID RATE BEING ?0325 PER 100 POUNDS, INCREASED TO ?035 PER 100 POUNDS PER AGENT JONES' TARIFF X-148, I.C.C. NO. 3659. YOU URGE THAT SAID RATE IS APPLICABLE ON ONLY COMMERCIAL SHIPMENTS AND THAT THE RATE TO BE USED IN COMPUTING THE CHARGE OF A GOVERNMENT SHIPMENT IS THAT PROVIDED IN ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 16 SERIES, OR $0.45 PER 100 POUNDS FOR A PERIOD OF STORAGE EXCEEDING 12 MONTHS.

THERE WOULD APPEAR NO QUESTION BUT THAT THE RATE OF ?035 PER 100 POUNDS WOULD HAVE BEEN APPLICABLE ON A COMMERCIAL SHIPMENT STORED IN TRANSIT FOR THE SAME TIME AND PERIOD THAT THE INSTANT GOVERNMENT SHIPMENT WAS IN STORAGE. THAT THE CARRIERS MAY NOT BE TARIFF PROVISIONS EXCLUDE THE GOVERNMENT FROM THE RIGHT TO THE APPLICATION OF RATES OPEN TO THE PUBLIC AT LARGE IS ELEMENTAL. SEE IN THIS CONNECTION THE CASE OF ATCHISON, TOPEKA AND SANTA FE RY. CO. V. UNITED STATES, 59 C.1CLS. 275, 288, WHERE THE COURT STATED: " WE HAVE HELD THAT A RAILROAD COMPANY CANNOT 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.' SEE ALSO ILLINOIS CENTRAL RAILROAD CO. V. UNITED STATES, 58 C.1CLS. 182. THE EFFECT OF THE TARIFF PROVISION HERE INVOLVED, IN ATTEMPTING TO LIMIT THE AVAILABILITY OF THE TRANSIT PRIVILEGE AND CHARGE TO COMMERCIAL FREIGHT STORED AND RESHIPPED UNDER REGULATIONS WHICH DISTINGUISH COMMERCIAL FREIGHT AS BEING OTHER THAN GOVERNMENT FREIGHT, WOULD BE TO DISCRIMINATE UNLAWFULLY AGAINST THE GOVERNMENT AS SHIPPER. IT IS AXIOMATIC THAT THE SOVEREIGN MAY NOT BE DENIED, THROUGH TARIFF PROVISION OR OTHERWISE, THE BENEFIT OF SERVICES OR THE APPLICABILITY OF CHARGES AVAILABLE TO ITS SUBJECTS GROWING OUT OF THE OPERATIONS OF COMMON CARRIERS.

ACCORDINGLY, SINCE THE SETTLEMENT WAS MADE UPON THE BASIS OF THE RATE PROVIDED FOR THE STORAGE IN TRANSIT OF COMMERCIAL SHIPMENTS IT IS SUSTAINED.