El Paso & Southwestern Co. v. United States

*984MEMORANDUM BY THE COURT

(1) The plaintiffs are entitled to recover the item of $7,949.55 (Finding III) because its bills were properly rendered and the accounting officers applied an improper combination of rates. The plaintiffs accepted payments under protest. (See Southern Pacific Company case, decided by the Supreme Court May 11, 1925, 268 U. S. 263.)

(2) The plaintiffs are entitled to recover the item of $578.23 (Finding IV) because it rendered the service called for. The deduction, being for first and second class made by the disbursing officer, was in error. This item is the amount claimed in the petition.

(3) The plaintiffs are not entitled to recover $3.28 under Finding V, because they accepted the deduction.

(4) The plaintiffs aro entitled to recover the item of $16.87 in the first paragraph of Finding VI, the item of $24.75 *985in the second paragraph of Finding VI, and $132.30 in the tliird paragraph of Finding VI. These items were on account of deductions made for the transportation of officers. The plaintiffs are not entitled to recover for the deductions made on account of transportation of enlisted men. It does not appear that the men were transported in accordance with the requirements upon which the tariff rates are based. The service rendered by transporting the men in box cars and cattle cars is not a transportation service upon which the tariff rates are based. It is not the ordinary or usual kind of transportation nor is the service such as is required. The tariff rate, therefore, can not properly be applied to this service, and the evidence fails to show what the value of the service was.

(5) For the reasons last above stated no allowance is made for the item mentioned in Finding VII.