#### MISSOURI PACIFIC RAILROAD COMPANY v. THE UNITED STATES.

[No. 34019.

Decided June 12, 1922.]

*On the Proofs.*

*Transportation of freight; published, tariffs; switching*ohai-ges.— Plaintiff bad the only line between Batesville, Ark., and Pfeif-fer’s quarry adjacent thereto, and Leavenworth, Kans. Its local tariff rate for stone between Batesville and Leavenworth •was 15 cents per 100 pounds. Plaintiff gave the Government a rate of 12J cents per 100 pounds between Pfeiffer’s quarry and Leavenworth, and issued a local tariff fixing that rate for hauling stone, with a note that “ the above rate will apply only on shipments consigned to the Federal prison, Fort Leavenworth, Kans., the switching charge, Leavenworth, Ivans., to Federal prison to be additional.” The lines of two other railroads only ran from Leavenworth to the Federal prison, and their switching charge was each §4 per ear. The Government voluntarily paid plaintiff the additional switching charge of $4 per car, and the plaintiff in turn paid the same to one of *432said companies, and these payments continued for about 14 years. While such payments were being made, the plaintiff issued other local tariffs, and finally a local and joint tariff, all omitting the note specifying the addition of switching charges to its rate, which was the same in all, 12J cents per 100 pounds. The Government after about 14 years reached the conclusion that the payments were erroneously made, and deducted them all from current bills of plaintiff. *Held,*that the long-continued construction of the Government in favor of such charge is, in the absence of proof of an intention on the part of plaintiff' to abandon the same, sufficient to rebut any presumption arising from the omission from its later tariffs of the words contained in said note to its original tariff, and plaintiff is entitled to recover such deductions.

*The Reporter’s*statement of the case:

*Mr. F. Carter Pope*for the plaintiff.

*Mr. Perry W. Howard,*with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts of the case as found by the-court:

I. Plaintiff is a corporation organized under the laws of the State of Missouri, and owns, and since the month, of May, 1917, it has owned,. and, excepting for the period of Federal control, has operated the system of railways in the States of Missouri, Arkansas, Kansas, and other-States, formerly owned and operated by the St. Louis, Iron Mountain & Southern and the Missouri Pacific Railway Companies. Parts of the lines of said systems were constructed by the aid of the grants of lands by the United States Government.

II. Batesville, Arkansas, is a point strictly local to the old St. Louis, Iron Mountain & Southern line, as is Pfeiffer’s, quarry, adjacent to Batesville. Leavenworth, Kansas, is a point on the old Missouri Pacific line, and is also reached by other railroad lines. The Federal penitentiary at Leavenworth, Kansas, is not on plaintiff’s line but on the lines, of the Union Pacific and Atchison, Topeka & Santa Fe Railroad Companies, who have for many years, under tariffs. issued by both of them, assessed and collected a charge of four dollars per car for hauling carloads of stone from plain- - *433tiff’s line to the penitentiary. Neither of said companies has any interest whatsoever in the revenue for the line haul on traffic over plaintiff’s lines from noncompetitive points nor, on the other hand, has plaintiff any interest in the switching charges assessed by them.

III. At all the times hereinafter mentioned there has been a route on plaintiff’s and its said predecessors’ lines from Patesviile or Pfeiffer’s quarry to Leavenworth by way of their White Eiver, Cairo, Kirkwood, and Carondelet branches to Pacific, Missouri, thence to Kansas City, and from Kansas City to Leavenworth, a total distance of 588.50 miles, subject to land-grant deductions from the rate of 17.881 per cent.

IV. By their Tariff No. I. S. 11591, Interstate Commerce Commission No. 5847, effective October 26, 1903, the Missouri Pacific Eailway Company and the St. Louis, Iron Mountain & Southern Eailway Company named a rate on stone in carload lots, 40,000 pounds minimum, from Bates-, ville, Arkansas, to Missouri Eiver points, including Leavenworth, Kansas, of 15 cents per hundredweight. Said tariff remained in effect to July 1,1909, when, by Supplement No. 5 thereto, it was canceled and the following reference was given: “For rates, see Tariff I. S. 12600-A, I. C. C. 9820, Supplements and reissues.”

V. In November, 1904, when the United States was about to begin the construction of large additions to the Federal penitentiary at Leavenworth, Kansas, and had under consideration the use of stone from Pfeiffer’s quarry, the warden of the penitentiary inquired of the Missouri Pacific Eailway Company the rate on such stone to the Government, and was advised that on rough or ton stone, Batesville to Leavenworth, for the new Federal prison, the net cash rate would be 121 cents per hundred pounds, switching from Leavenworth to the prison to be additional. The said net cash rate was, in fact, the 15-cent commercial rate less the land-grant proportion thereof, as stated in Finding III, and the switching charges referred to were the charges assessed by the lines at Leavenworth having access to the Federal penitentiary, all of which was perfectly well understood by the warden of the penitentiary.

*434YI. Following the quotation of the above rate to the warden of the penitentiary, said warden awarded sundry contracts for large amounts of stone to the Pfeiffer Stone Company, owners of the quarry near Batesville, and shipments began almost immediately. Shortly thereafter, as a matter of information to its agents, the Missouri Pacific Pailway Company issued its Tariff No. I. S. 12600, Interstate Commerce Commission No. 7249, effective December 18, 1904, which did not cancel the Commercial Tariff I. S. 11591,1. C. C. 5847, referred to in Finding IY, and thereby named a rate on stone from Batesville to Leavenworth in carload lots, 40,000 pounds minimum, of 12-J- cents per 100 pounds, subject to the following note:

“ The above rate will apply only on shipments consigned to the Federal prison, Ft. Leavenworth, Kansas, the switching charge from Leavenworth, Kansas, to Federal prison to be additional.”

Said Tariff I. S. 12600, I. C. C. 7249, remained in effect until December 18, 1906, when it was supérseded by I. S. 12600-A, I. C. C. No. 9820, which was the same in all respects with the exception that the above quoted note was omitted from the latter tariff, which, also, did not cancel the Tariff I. S. 11591,1. C. C. 5847, providing the 15-cent rate. It has not been shown to have been the intention of plaintiff’s said predecessors in the issuance of said Tariff 12600-A, either to make the 12|-cent rate an open, commercial rate, nor to absorb the switching charges on shipments to the penitentiary. Said tariff was a purely local tariff of plaintiff’s predecessors.

Said Tariff 12600-A, I. C. C. 9820, which superseded Tariff I. S. 11591, I. C. C. 5847, on July 1, 1909, when the latter tariff was canceled, as stated in Finding IY, remained in effect until January 15, 1910, at which time it was canceled by Missouri Pacific Tariff Local No. 2482, I. C. C. A-1309, naming the same rate of 12|- cents from Batesville to Leavenworth, and carrying the following note:

“Kate named herein will be subject to Tariffs No. 2103, I. C. C. A-1241, supplements thereto and reissues thereof, governing switching charges and absorptions of same at Leavenworth.”

*435VII. On December 4, 1909, the Missouri Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company issued their “ Freight Tariff of Local and Joint Rates, No. 1109, I. C: C. No. A-1308, effective January 15, 1910.” Said rate of 12-| cents per hundred pounds on stone from Pfeiffer’s quarry to Leavenworth, Kansas, was published in said tariff, which, on its title-page, provided:

“ Governed, except as otherwise provided herein, by the Western Classification No. 41, F. O. Becker’s I. C. C. No. 5 (Mo. Pac. No. 2-D), supplements thereto and reissue thereof, and by exceptions thereto per Southwestern Lines Classification Exceptions and Rules, Circular 2-H, F. C. Leland’s I. C. O. No. 611 (Mo. Pac. No. 7), supplements thereto and reissues thereof, and by Missouri Pacific System Circular N. 809, I. C. 0. 9934, supplements thereto and reissues thereof.”

While it was otherwise provided in said tariff as follows:

“ RULES AND REGULATIONS.

“ The following rules and regulations must be observed in connection with all rates herein, except as otherwise provided :

“Item No. 14. Subject: Application of rules of individual carriers.

“Rules: Unless otherwise provided for herein, freight transported under this tariff, in addition to the rates named herein, will be subject to the current rules and regulations of the individual lines parties hereto, and which are lawfully on file with the Interstate Commerce Commission relating to switching.

“ Item No. 19. Drayage and switching charges.’ For dray-age and switching charges and absorptions applicable at stations on lines named below see the following tariffs:

“ Missouri Pacific Station,' Leavenworth, Kans. Mo. Pac. Tariff No. 2103. Mo. Pac. I. C. C. No. A-1241.”

The Rules Circular 2-H, F. A. Leland’s I. C. C. No. 611, referred to on the title page of said tariff, as governing, was one of general application and so far as material to this case provided as follows:

_ “ Shipments transported under the rates, rules, and conditions presented in this tariff, or in tariffs made subject to this tariff, shall be subject to such further charges and allowances *436as are contained in publications of the participating carriers lawfully on file with the Interstate Commerce Commission relating to switching terminal charges.”

Said Tariff 1109, I. C. C. 1808, effective January 15, 1910, was the first tariff naming rates specifically from Pfeiffer’s quarry, and it also carried a rate to Kansas City, intermediate of Leavenworth, of 15 cents per hundred on stone. Prior to said time charges on a strict tariff basis would be 4-J- cents additional to the Batesville rate, under Missouri Pacific Local Distance Tariff No. 3569,1. C. C. No. A-1655.

Other lines, including the Atchison, Topeka & Santa Fe and Chicago, Burlington & Quincy Railroad Companies, concurred in said tariff. It has not been shown how the concurrence of the Atchison, Topeka *&*Santa Fe and Chicago, Burlington & Quincy Companies in a tariff issued by the Missouri Pacific lines affected the rate published in said tariff on business which the issuing lines alone were in position to handle.

Said Tariff No. 1109, I. C. C. A-1308, remained in effect until October *17,*1913, when, by supplement No. 33 thereto, the same was canceled and the following reference given: *“*For Pates, see Southwestern Lines Tariff 34-E.”

YIII. For many years prior to October IT, 1913, there had been in existence, and there still is in existence, a tariff to which most of the railroads in the southwestern territory are parties, known as “ Southwestern Lines Tariff No. 34,” which is reissued from time to time under consecutive letters. Said tariff is, as shown on its title page, a “ local, joint, and proportional tariff,” and carries rates that are local to, as well as joint between, the lines parties to it, and is a tariff of wide and general circulation and extensive use. When the issue of said tariff known as 34-E was compiled, plaintiff’s said predecessors had said rate from Batesville and Pfeiffer’s quarry to Leavenworth inserted therein under the same limitations as governed the “local and joint tariff” referred to in Finding YII above, the title page of said tariff carrying the following provision:

“ Governed, except as otherwise provided herein, by Western Classification No. 51 (T. J. Hoffman’s I. C. C. No. 9) or reissues thereof; and by exceptions to said classification, *437Southwestern Lines Classifications, Exceptions and Rules Circular 2-N (F. A. Leland’s I. C. C. No. 958), or reissues thereof.”

F. A. Leland’s I. C. C. No. 958, S.-W. Lines Classification, Exceptions and Rules Circular No. 2-N, page 35, provides as follows:

“ Subject: Application of individual tariffs containing additional charges and allowances.

“ Item No. 36.

“Rules: Shipments transported under the rates, rules, and conditions presented in this tariff or in tariffs made subject to this tariff shall be subject to such further charges and allowances as are contained in publications of the participating carriers lawfully on file with, the Interstate Commerce Commission relating to switching terminal charges.”

The said rates continued to be carried in said Southwestern Lines Tariff of Local Joint and Proportional Rates, 34, under the same limitations as above stated until the said 12-^-cent rate was canceled and the 15-cent original commercial rate was restored by Supplement No. 24 to Tariff 34-G, as follows:

“ COMMODITY RATES.

“ Item No. 2845-B cancels 2845-A.

“Commodity: Stone and manufactures of same; stone, rough, carloads; minimum weight will be marked capacity of car, but not less than 40,000 pounds.

“ From Batesville, Ark., Pfeiffer’s quarry, Ark. (Note: Applies only via Mo. Pac. Ry. direct), to Leavenworth, Kans.

“ Rates in cents per 100 pounds unless otherwise specified, 15.”

IX. Shipments of stone from Pfeiffer’s quarry to Leavenworth, consigned to the penitentiary, covered .by ordinary commercial bills of lading, began shortly after the net rates were stated to the warden in 1904, and before the issuance of any tariff whatsoever, and the charges, for many years until the spring of 1917, were settled with the agent of the Missouri Pacific Railway Company at Leavenworth, by the warden, who was also disbursing officer of the penitentiary.

In his account for the quarter ending December 31, 1916, the warden of the penitentiary, besides the 12£ cents per *438100 pounds on the stone, had paid to the agent of the receiver of the Missouri Pacific Railway Company (said company being then in the hands of a receiver) at Leavenworth, $88 switching charges on twenty-two carloads of stone from Pfeiffer’s quarry, waybilled to Leavenworth and consigned to the penitentiary, in accordance with his previous practice.

The Auditor for the State and Other Departments, who audited and who had always audited the accounts of the warden, disallowed $2.00 per car of said switching charges, upon the ground that the delivering line, the Union Pacific, used the Government’s tracks in part in making delivery, and, therefore, ought not to have more than $2.00 of the charges. The tariff of the Union Pacific was for service over its own line only. From said disallowance the warden appealed to the Comptroller of the Treasury, who, in a decision of date May 8, 1917, in Appeal No. 27018, not only sustained the auditor in the disallowance o.f the $2.00 per car, but also directed the disallowance of the other $2.00 per car and also that land grant should be deducted from the 12|-cent transportation rate. Neither the receiver of the Missouri Pacific Railway Company nor plaintiff was a party to said proceeding before the auditor and the comptroller.

X. FolloAving said decision of the comptroller, the Auditor for the State and Other Departments revised the accounts of the warden of the penitentiary from the beginning of the shipment of stone from Pfeiffer’s quarry and presented to plaintiff a bill for alleged overpayments to plaintiff’s said predecessors for switching charges paid and land grant not deducted from said 12J-cent rate with demand for its payment.

Plaintiff declined to pay said demand by the auditor and applied to the comptroller for a reconsideration of his decision of May 8, 1917, in Appeal No. 27018. The comptroller reconsidered said decision, and in his decision on the reconsideration he said:

“Because of the fact that this 12j-cent rate, originally named as a net rate between Batesville and Leavenworth, has been paid *by*the Government for a number of years without any deduction on account of land grant, during *439which time the regular published rate from Batesville to Kansas City has been 15 cents per 100 pounds, there appears some justification in the claimant’s contention that this 12-J-cent rate was intended as a net rate to the Government, though such contention is not justified from the tariffs.

“ In view of the equities thus involved in the case, I am of opinion that accounts stated prior to the date of the decision may be allowed without land-grant deduction from this 12-g-cent rate. The decision, however, is affirmed as to principle involved, and is to be applied to payments made subsequent thereto.

“SWITCHING CHARGES.

“ Originally the tariff plainly indicated that switching charges were to be added, but later tariffs omitted this provision. The rate from Batesville to Leavenworth at the time when the shipments under consideration were made was published in a joint tariff naming rates, Batesville to Leavenworth, and, therefore, appears applicable to any proper delivery in Leavenworth and not merely confined to the local service of the Missouri Pacific and St. Louis, Iron Mountain & Southern Railway.

“Circular 140-A, effective at time of service, which is issued for information, but not for billing purposes, published list of firms and industries having trackage facilities at competitive points on the Missouri Pacific Railway and St. Louis, Iron Mountain & Southern Railway, among which, at Leavenworth, Kansas, is mentioned the United States penitentiary.

“ It thus appears that the United States penitentiary is a Leavenworth point to which rates named to Leavenworth in joint tariffs should apply. It appears, therefore, that the rate named in the joint tariff for the transportation of stone from Batesville to Leavenworth is to be applied in full payment for the transportation to the United States penitentiary, which is to be divided among the lines rendering the service in accordance with agreements among themselves.

“ Upon a reconsideration of my decision of May 8, 1917, referred to above, for the reasons herein set forth, my previous action in disallowing the switching charges is adhered to, and the disallowance on account of land-grant is reversed.”

XI. Following the discoveries by the Auditor for the State and Other Departments and the Comptroller of the Treasury of the alleged errors in the warden’s settlements *440with plaintiff’s predecessor, the settlement for the transportation of stone from Batesville to Leavenworth was transferred from the warden to said auditor. In a settlement made by the auditor dated May 29, 1918, covering (1) plaintiff’s bills Nos. 109, 126, and 959, rendered by plaintiff to the auditor, (2) a voucher presented by plaintiff’s Leavenworth agent to the warden for the quarter ending June 30, 1917 — all for a total of thirty-two cars billed at 12-J- cents per 100 pounds for the transportation and $4.00 per car for the switching charges, $3,337.20 altogether, and (3) plaintiff’s bill 1990 rendered to the auditor for service before Supplement 24 to Southwestern Lines Tariff 34-G had taken effect (at the rate of 15 cents per 100 pounds, less land-grant) for the transportation, plus $4.00 per car switching charges on seven cars,. $820.51, or a total of $4,151.71, the auditor again revised the warden’s whole account and settled said bills as follows:

First. The auditor disallowed and made deduction for all the switching charges (including $11 reloading charges incurred in September and October, 1905) paid to plaintiff’s said predecessor by the warden with full knowledge of all the facts, and while the rate was carried only in tariffs prior to Tariff 1109, I. O. C. 1308, said deductions amounting to $1,399.00.

Second. The auditor also disallowed and made deduction for all the switching charges paid plaintiff’s said predecessors by the warden with full knowledge of all the facts, while the rate was carried in plaintiff’s said predecessor’s own Tariff of Local and Joint Nates No. 1109, I. C. C. A-1308, amounting to $280.00.

Third. The auditor also disallowed and made deduction for all switching charges paid by the warden with full knowledge of all the facts, while the rate was carried in the Southwestern Lines Tariff 34 at Local, Joint, and Proportional Nates, amounting to $428, the said $428 including the $88 directed by the comptroller’s decision above referred to, to be deducted.

Fourth. The auditor also disallowed and made deduction for switching charges on the thirty-two cars embraced in plaintiff’s bills, aggregating $3,337.20, as above described, *441while said 12|-cent rate was carried in Southwestern Lines Tariff 34 before Supplement 24 to 34-G had taken effect, amounting to $128.00.

Fifth. The auditor also disallowed and made deduction for switching charges on the seven cars embraced in plaintiff’s bill 1990 above referred to for service rendered subsequent to the taking effect of Supplement 24 to Southwestern Lines Tariff 34r(x, amounting to $28.00.

Sixth. The auditor also disallowed and made deduction for land grant from the 12-J-cent rate out of the transportation charges embraced in the voucher for the June quarter, 1917, rendered by plaintiff’s Leavenworth agent to the warden, the same not having been paid prior to the comptroller’s decision of October 1, 1917, said land-grant deductions amounting to $268.19, and making the aggregate of the auditor’s deductions from plaintiff’s said bills the sum of $2,531.19.

Also, on plaintiff’s bill No. 7, for a carload of stone shipped June 12,1917, and billed at 12| cents for the freight and $4.00 for the switching charges, said auditor, in a settlement dated August 23, 1918, deducted $17.65 on account of land grant and said $4.00 switching charge, making the total deductions from its bills the sum of $2,552.84.

XII. Plaintiff declined the settlement tendered by said auditor on May 29, 1918, and appealed to the comptroller, who, in a decision of date July 31, 1918, in Appeal No. 28112, affirmed the auditor’s settlement.

XIII. During all the times mentioned in the foregoing findings, plaintiff and its predecessors were in position to handle the shipments all the way from Pfeiffer’s quarry to Leavenworth, and they were the only carriers so situated.

At no time did any of the tariffs to which plaintiff or its predecessors were parties name a rate from Pfeiffer’s quarry to the penitentiary.

At no time did any of the tariffs to which plaintiff or its predecessors was a party provide for the absorption of switching charges on business originating at Pfeiffer’s quarry, Arkansas, and terminating at the Federal penitentiary, at Leavenworth. In the absence of any such provision absorption of such charges is not permitted under the rules and regulations of the Interstate Commerce Commission.

*442At no time did any of the tariffs to which plaintiff or its predecessors were parties name a junction point with any other carrier in connection with the rate published from either Batesville or Pfeiffer’s quarry to Leavenworth.

At all times during the continuance of the 12J-cent rate from Batesville and, later, Pfeiffer’s quarry to Leavenworth, the rate to the intermediate point, Kansas City, remained at 15 cents.

DowNex, Judge,

delivered the opinion of the court.

Plaintiff and its predecessor companies performed service for a number of years by way of transportation of stone from Pfeiffer’s quarry near Batesville, Arkansas, to Leavenworth, Kansas, consigned to the U. S. penitentiary in or near that city. Batesville was a point on the old St. Louis, Iron Mountain & Southern, one of plaintiff’s predecessor companies, and was reached by no other line, and Leavenworth was a point on the old Missouri Pacific which controlled the St. Louis, Iron Mountain & Southern. Plaintiff’s lines reached Leavenworth proper but not the penitentiary reservation, and in consequence cars delivered by plaintiff at Leavenworth must be switched to the penitentiary, a service which might be performed by either of two roads, each of which provided in its tariffs for a switching charge of $4.00 per car. For about fourteen years this switching charge was paid by the plaintiff on all cars of stone consigned to the penitentiary and added to its bills, which were paid by the warden of the penitentiary, whose accounts were regularly examined by the proper auditor and such payments approved. After the expiration of this period there was a reexamination of the warden’s accounts from the beginning, a conclusion that the switching charges had been improperly paid, and a deduction of the amount herein sued for from subsequent accounts of the plaintiff. There was also a further deduction directed by the comptroller on account of land-grant rates, but in that respect that decision was after-wards reversed. The sole question in this case as presented is as to the switching charges mentioned.

This question thus stated sounds very simple, but it is complicated by the injection into the record of many tariffs *443with usual complications and diversified constructions. They are all referred to in the petition and findings of fact and discussed in the official reports and testimony of the witnesses, all of which are commended to the searcher for details. We shall not here consider them in detail, but content ourselves with general observation and conclusions made as brief as possible.

When in 1904 improvements requiring large quantities of stone were in contemplation at the penitentiary the warden, preliminary to letting contracts and in anticipation of a contract for stone from Pfeiffer’s quarry, near Batesville, Arkansas, asked for freight rates thereon. The rate then in force from Batesville to Leavenworth, via the plaintiff’s predecessors’ lines and admittedly a local rate of these lines, was fifteen cents per hundred in car load lots of 40,000 pounds against which a small percentage of land grant was to be computed. The quarry was a short distance away from Batesville for which haul a distance tariff was applicable, but the contemplated transportation was treated as from Batesville and a rate quoted from Batesville to Leavenworth of twelve and one-half cents per hundred, practically the existing rate with land grant deducted, and switching charges from Leavenworth to the penitentiary additional. The rate was accepted, shipments commenced and, largely for the information of its employees and to protect the rate, a tariff was issued naming this rate to “ apply only on shipments consigned to the Federal prison, Ft. Leavenworth, Kansas, the switching charge from Leavenworth, Kansas, to the Federal prison to be additional.”

Seemingly there is no possible room for dispute as to the situation at this period. This tariff was purely local, it specifically provided for switching charges in addition to the quoted rate and, the character of the rate and service considered, it would seem, and in fact it is proven by expert testimony, not only that the plaintiff was not required to absorb the' switching charges but was prohibited from so doing. Strangely, when the accounts of the warden were reopened by the auditor the disallowances reached back through this entire period. Some time afterward the rate was incorporated into other tariffs, the note referred to as to *444switching charges was omitted, it found its way into a “ local and joint” tariff, the details of which otherwise appear, and it came to be contended that the rate named in a local and joint tariff was a joint rate, the business competitive and the switching charges to be absorbed by the plaintiff company.

’ It is perhaps well to observe that no question had ever been made as to the payments of switching charges by the warden and the passing of his accounts in that respect until, in 1917, his accounts for the quarter ending December 31, 1916, were under examination, in which accounts credit was claimed for the payment of $88.00 as switching charges on 22 car loads of stone. The auditor did not disallow the items as improper charges but disallowed $2.00 of each claimed credit of $4.00 per car for switching on the theory that because the Government owned tracks on the penitentiary reservation which were used in switching the cars the Government should participate 50-50 in the switching revenues.

Thus at this late date, after more than twelve years of approval of such charges, the auditor still does not question the propriety of a switching charge, but upon an appeal by the warden to the comptroller, it was held, without, so far as the opinion shows, giving consideration to the auditor’s theory, that the plaintiff company must absorb the switching charge, and the one-half thereof for which the auditor had allowed the warden credit was also disallowed.

Subsequently, in October, 1917, 24 Comp. Dec. 193, there was a reconsideration on application of the plaintiff company, and following that decision, the auditor, in 1918, in settling bills of plaintiff for transportation of stone in 1917, made deduction of switching charges back to August, 1905, amounting to $2,531.19 and on appeal the auditor’s action was affirmed by the comptroller.

Thus was a construction of many years’ standing reversed, by reason of which accounts long settled were reopened and payment made more than a dozen years before held to have been illegally made and charged against current bills. This court has repeatedly within recent years considered the conduct of plaintiffs Avith reference to present*445ment and prosecution of their claims, acceptance of settlements without protest, or other acts indicating acquiescence in settlements made as precluding recovery, and in some such cases we have predicated the justice of the rule upon the necessities of the Government service and in the particular respect that there be an end' to accounting. The rule is a salutary one. The plaintiff in this case, did it seek to assert some further claim with reference to service here involved, might, under the holdings of this court, be precluded from asserting the same, even when not barred by the statute of limitations, by reason of its acquiescence in settlements made, founded to an extent, as said, on tha necessity for finality. But a settlement of long standing, opened up by the Government, is as effectually opened up as if such action were to be permitted by a claimant, and against that, under such circumstances as these, Government officials would strenuously protest. Departmental construction has weight when the meaning of statutes is in question; long continued departmental practice is of still more weight. And it is not consistent that rules invoked by the Government in its favor are of no force when operating otherwise. It is true that the cases before the comptroller involved in the first instance particular items of transportation, and it was the cases presented which were decided, and it was but natural to conform decision to the case presented, but the subsequent action of the auditor in reopening the whole account reached back of current questions, disturbed the dust-covered settlements of years before, blinded the eyes of justice to established practice of such antiquity as to deserve a better fate, and branded the rule, supposed salutary because tending to finality in accounting, as a “ poor rule ” by determining that it was not made to “ work both ways.”

But aside from this feature of the case it must be held that the switching charges in question were properly charged and collected. During the early stages of these transactions the proposition can not be disputed. There is no room for other construction. With that situation as a conceded fact, the Government maintains that subsequent action so changed the character of the rate and service as *446to render the charge an improper one. But the Government had paid these charges during all these years and then asserted its right to set them off against other sums due the plaintiff for other service.

There is no doubt about the right of set-off, but the right of the Government to set-off and retention of the amount from sums otherwise due is dependent upon the validity of the Government’s claim which it seeks to set off, and the fact that it has exercised the right of set-off does not relieve it, in case of suit, from assuming the burden of proof just as if it were a case of set-off pleaded.

Aside from technical questions as to constructions of tariffs it naturally occurs to one to seek a reason why a railroad company, having established its own local rate-on noncompetitive business with switching charges added,, should so thereafter change its tariffs as to make its rate “ joint” and require the absorption of switching charges on a competitive basis. If intention is to govern construction the presumption is against any such intended change. If, without intention, the change was made it must be so determined from technical constructions of tariffs eliminating intention. The plaintiff disclaims intention to make any such change. The defendant asserts it was made and relies on technical construction of tariffs.

In this connection, as illustrative of the line of argument, much is made of the fact that the rate for this service was, after a time, incorporated in a local and joint tariff and the argument is that the “joint and local” tariff applied and the switching charges were absorbed. We understand what is meant by a “local” rate and what is meant by a “joint”' rate but we do not comprehend a “ joint and local ” rate. But we are furnished in the record in this case some very valuable testimony by a disinterested expert whose qualifications commend him, and from this testimony, if it were otherwise a doubtful proposition, it clearly appears that it is a common practice to incorporate local rates in a tariff also carrying joint rates and properly entitled joint and local, so that the fact that this rate appeared in a “local and joint” tariff did not deprive it, *447of its character as a local rate. And the argument that because there were two competing roads, over either of which the cars might be switched from Leavenworth to the penitentiary, makes the haul from Batesville to Leavenworth competitive, is equally without weight.

Further discussion of other propositions can be of no value, since the conclusion reached can not be affected thereby. We are of the opinion that the switching charges in question were proper charges and this conclusion requires a judgment for the plaintiff in the sum of $2,582.84, which we have directed.

Graham, *Judge;*Hay, *Judge;*Booth, *Judge;*and Camp.bell, *Chief*Justice, concur.