The defendant in error, Oklahoma Portland Cement Company, as complainant, recovered a judgment before the Oklahoma Corporation Commission against the plaintiffs in error, Oklahoma City-Ada-Atoka Railway Company and St. Louis-San Francisco Railway Company (J. M. Kurn and Frank A. Thompson, trustees), for the refund of freight collected on cement shipments in excess of the rate such Corporation Commission held was the lawful rate in force at the time such charge was made. The railroads appeal.
The amount of cement shipped by the cement company over the roads in question, during the period of time involved, is not disputed. The freight charged at the time of shipment was at the rate the railroads involved claim was the lawful rate in force at that time. Judgment was rendered on the basis of the rate contended for by the cement company. There is no dispute as to the amount of the recovery in the event judgment is for the cement company.
The rate involved is on cement between Ada and Marion, Oklahoma. Marion is a station on the Oklahoma City-Ada-Atoka Railway main line, slightly south and a few miles east of Oklahoma City, Oklahoma. Although established as a station for many years it had fallen into disuse and was not reactivated until the Air Force Base, now known as Tinker Field, was established in the same vicinity.
Prior to July 11, 1922, the trackage now comprising the Oklahoma City-Ada-Atoka Railway was owned or controlled by the Missouri-Kansas-Texas Railway Company. On January 5, 1924, such trackage was purchased by one H. R. Hudson, and finally the property was transferred to Oklahoma City-Ada-Atoka Railway Company, on September 8, 1930.
On July 11, 1922, the Oklahoma Portland Cement Company filed with the Corporation Commission a complaint against the Receiver of the Missouri-Kansas-Texas Railway Company, involving the reasonableness of rail rates on cement moving in carloads. Similar complaints were filed, either by this cement company or by other interested persons, against all the principal railroads in Oklahoma. These various matters were consolidated for hearing by the Corporation Commission, and on February 23, 1924, the Commission issued its order No. 2361, prescribing a *52mileage scale of rates for cement moving in carload lots, to all points in Oklahoma, other than Dewey. This mileage scale of rates established a rate of 12 cents per 100 pounds from Ada to Marion, Oklahoma. After the adoption of this rate, and on May 6, 1924, the Oklahoma City-Ada-Atoka Railway Company began operating the trackage in question. On May 26, 1924, such railway company duly adopted the tariffs and rates theretofore filed with the Corporation Commission covering this line. The O.C.A.A. carried Marion as a station at this tariff rate in its traffic publication until April 28, 1937, at which time it abandoned such station in its tariff publication.
Thereafter, on February 24, 1941, the O.C.A.A. wrote the U. S. Air Corps a proposal agreeing to construct additional trackage at the site and “further agreed that rates and ratings applicable to this activity will not in any case exceed the net cash rates applicable to Oklahoma City, Oklahoma (where land grant deductions apply) except on low grade commodities, such as sand and gravel, crushed stone, slag, or brick and tile, used for construction purposes, moving on commercial or Government bills of lading which may be handled on distance or commodity tariff.” This proposal became an agreement between the Government the O.C.A.A. All the Oklahoma railroads, then acting through their legal representative, filed a petition with the Oklahoma Corporation Commission asking for approval of this rate agreement. Acting on this request, and on April 28, 1941, the Corporation Commission addressed a letter to the representative of the Oklahoma railroads acknowledging that it was advised of the proposed establishment of the army bomber repair plant at the Marion station, and of the agreement between the railroads and the United States Government. The letter further acknowledged the railroads’ request for authority to amend their tariffs to comply with this agreement and then provided:
“There is no railroad station now located between Oklahoma City and the new station, Marion, and the practical effect of those tariff amendments is to put Marion within the railroad limits of Oklahoma City, Oklahoma, except on shipments to and from Marion, on one hand, and to and from Oklahoma City, on the other hand. As above stated, this is a United States Government activity and the general public will have little interest directly, in the rates applicable to and from such activity, and the arrangements having been made by the Government, on the one hand, and the railroads, on the other, this Commission is of the opinion, under the provisions of the Constitution of this State, that such arrangements should be approved. Oklahoma railroads be and they are hereby authorized to issue, file, and make effective, on one days notice to the public and this Commission, necessary tariffs or supplements to tariffs which shall provide for the application at Marion, Oklahoma, a point on the Oklahoma City-Ada-Atoka Railroad, of the rates and ratings, whether commodity or mileage, that apply to or from Oklahoma City, Oklahoma, except that such arrangements may be restricted as to shipments of low grade commodities, such as sand, gravel, crushed stone, slag, brick and tile and on all shipments moving locally between Marion and Oklahoma City.
“All 'tariffs issued hereunder shall bear reference to this Commission’s authority B-001737-4 of April 28, 1941. This authority shall be^ in full force and effect on or after this date.”
Following this the O.C.A.A. published its tariff announcing that:
“Rates from or to Oklahoma City, Okla., will be protected from or to Marion, Okla., on the O.C.A.A., except that this rule does not apply to or from Oklahoma City, Okla. Note— Will not apply on sand, gravel, crushed stone, slag, brick tile or chatt.”'
Based on this tariff the O.C.A.A. and Frisco charged the Oklahoma City rate of 13 cents per hundred on cement from Ada to Marion, instead of the former mileage rate of 12 cents.
*53The Corporation Commission found its Authority No. B-001737-4, issued on April 28, 1941, was an approval of the arrangement between the railroads and the United States Government, and was for the purpose of putting the Oklahoma City rates in force at Marion, with the exception of certain items of low grade commodities, to be used in the construction of buildings and in grading and paving the site. Among those enumerated were sand, gravel, crushed stone, slag, brick and tile, and the Commission found that the use of the term “paving” in connection with these other terms in the government-railroad negotiations, included cement, as a necessary ingredient to be used with the sand, gravel and crushed stone. The Corporation Commission therefore found that such authority did not authorize the carriers to charge and collect the Oklahoma City rate on cement shipped from Ada to Marion, Oklahoma.
The plaintiffs in error complain this is a suit for damages or reparation. The authority of the Commission is determined by 17 O. S. 1941 §121, which provides:
“The Corporation Commission is hereby vested with the power of a court of record to determine: First, the amount of refund due in all cases where any public service corporation . . . charges an amount for any service . . ., in excess of the lawful rate in force at the time such charge was made, ...”
In St. Louis-S. F. Ry. Co. v. State, 155 Okla. 236, 8 P. 2d 744, we held that the Corporation Commission was without power to award reparations for payments on freight shipments where the charges, when made, were in accordance with the rates therefor fixed by the Corporation Commission. The answer to the jurisdictional question therefore depends upon whether a charge has been made in excess of the fixed rate.
The fixed rate at the time of the shipments in question was undoubtedly the 12 cent rate contended for by the cement company, unless the same was fixed at a higher rate by authority B-001737-4, supra. This authority was the validation of an agreement made between the United States Government and the railroads in question. Its express purpose as shown by the letter from the railroad to the Chief of the Air Corps was to establish rates which would not exceed the rate to Oklahoma City. Its apparent purpose was to procure a reduction in rates rather than an increase. And, as further shown by the letter to the Air Corps, low grade commodities, such as sand and gravel, crushed stone, slag, or brick and tile, used for construction purposes, were specifically excepted from the order, and they were to continue to move on distance or commodity tariff. This authority was for the purpose of permitting this agreement to take effect. It was not an order fixing rates within the contemplation of art. IX, §18, Oklahoma Constitution. It contains no findings on which such rate orders are made, as required in Midland Valley R. Co. v. State, 24 Okla. 817, 104 P. 1086. It was not based upon notice, as is required of a general rate order under art. IX, §18, Oklahoma Constitution. We therefore conclude it was not a rate-fixing order, but a permissive authority to carry out the special wartime agreement made between the Government and the railroads.
On the other hand, the Corporation Commission found that cement was a low grade commodity, such as sand, gravel, crushed stone, slag, brick and tile, and was therefore in the exceptions to Authority B-001737-4. That cement is a low grade commodity for shipping purposes appears established.
“Cement is a low grade commodity which is usually loaded to the maximum capacity of the cars used.” 87 I.C.C.R.P.T. 462.
The carriers cite and rely on Application of Central Airlines, Inc., 199 Okla. 300, 185 P. 2d 919, as supporting its construction that, “low grade com*54modities, such as sand, gravel, crushed stone, slag, brick and tile” limited the low grade commodities to those specifically specified. The case cited construes section 34, art. IX, of the Oklahoma Constitution, wherein the language, “the term ‘transportation company’ shall include” was held limited to the particular ones therein specified. That case is clearly distinguishable from the one at bar.
It will be noted also that the authority from the Commission does not specifically except such commodities from the agreement, but provides that “such arrangements MAY be restricted as to shipments of low grade commodities.” Apparently, therefore, this authority leaves the question of the application of the Oklahoma City rate on such shipments open to the possibility of further agreement between the Government and the railroads.
We therefore conclude the Corporation Commission did not err in holding the commodity, cement, was not included in its Authority B-001737-4.
It is also contended that the O. C. A. A., was not a party to the earlier proceedings establishing the 12 cent rate and is therefore not bound by it. Its predecessor in the operation of the trackage involved was a party to such proceedings, and after the O.C.A.A. acquired the trackage it published and adopted these rates. The position of the carrier on this issue is untenable. If such holding was adopted the carrier would be in the position of trans-. porting a commodity on which no rate had been established. Under authority of Atchison, T. & S. F. Ry. Co. v. State, 85 Okla. 223, 206 P. 236, in such a situation the Corporation Commission would have authority to compel a refund of any excess charge.
The carriers next contend that even if the 13 cent rate was erroneous that it was published in the tariffs of the railroads, and, therefore, as the published rate was the legal rate. If it was such legal rate it is their contention the Corporation Commission is without jurisdiction under 17 O. S. 1941 §121. Numerous authorities construing the published rates of carriers operating under the Interstate Commerce Commission are cited. We are not here, however, dealing with published rates under the Interstate Commerce Commission. The Constitution of Oklahoma, art. IX, § 18, requires the Corporation Commission to fix the rates. 17 O. S. 1941 §121 vests the Corporation Commission with power to order refunds in the event the rate charged is in excess of the lawful rate in force at the time such charge was made. This statute obviously could refer only to the lawful rate fixed by the Corporation Commission.
Complaint is also made that the cement company has based its contracts and bids with the Government on the 13 cent freight rate which it has been required to pay, and that therefore it has sustained no actual loss in the premises and should not be entitled to recover from the carriers. The cement company has paid the excessive rate. The fact that it used such rate in computing its bids would appear to be no defense available to the carriers.
It is further contended that the decision of the Corporation Commission in 1950, was retroactive and established a rate then which was retroactive to the time the shipments were made some years earlier. The views we have expressed on the other points above set out appear to have fully answered this issue.
Finally, it is urged the cement company cannot recover because it participated in the acts complained of and therefore has sustained no injury. In support of this position the case of Mangum Electric Co. v. Border, 101 Okla. 64, 222 P. 1002, is cited. That was a tort case in which one participant sought to recover damages against the other. There is no evidence here that the cement company assented to the rate charged. It was not notified and *55did not participate in the proceedings which caused the company to change the rate. It simply paid the charge which was exacted from it in order to move the freight. We fail to see how that could be any such voluntary participation in the transaction as would bar its recovery of any illegal freight charged.
The judgment of the Corporation Commission is affirmed.
ARNOLD, C. J., and WELCH, CORN, DAVISON, and JOHNSON, JJ. concur. HALLEY, V.C.J., and GIBSON and O’ NEAL, JJ., dissent.