MaddeN, Judge,
delivered the opinion of the court:
This suit was brought pursuant to the special act of Congress of February 27, 1942, 56 Stat. 1122. We rendered a decision on January 3,1944, reported in 100 C. Cls. 375, holding that the special act was unconstitutional, as an attempted direction by Congress to this court to hear and decide again a case which the court had, in 1932, 76 C. Cls. 64, heard and decided under its general statutory jurisdiction, and to decide the case in a manner directed by Congress. Our decision that the special act was unconstitutional was reversed by the Supreme Court of the United States, 323 U. S. 1, that court holding that the special act did not award the plaintiff a new trial in the suit formerly decided, but rather created in the plaintiff a new cause of action where none had existed before, by so changing the law as to convert the plaintiff’s moral claims, upon which he could not otherwise recover because they had been the subject of an adverse judgment, into legal claims, enforceable in this court. The Supreme Court held that Congress had the power to make such a change in the law for the benefit of a claimant against the United States.
The validity of the special act being thus established, we now proceed to its interpretation, and its application to the facts of the case. Its text is as follows:
An Act
To confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon the claims of Allen Pope, his heirs or personal representatives, against the United States.
Be it enacted ~by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction be, and the same is hereby, conferred upon the Court of Claims of the United States, notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon the claims of Allen Pope, his heirs, or personal representatives, against the United States, as described and in the manner set out in section 2 hereof, which claims arise out of the construction by him of a tunnel for the second high service of the water supply in the District of Columbia.
Seo. 2. The Court of Claims is hereby directed to determine and render judgment at contract rates upon [503]*503the claims of the said Allen Pope, his heirs or personal representatives, for certain work performed for which he has not been paid, but of which the Government has received the use and benefit; namely, for the excavation and concrete work found by the court to have been performed by the said Pope in complying with certain orders of the contracting officer, whereby the plans for the work were so changed as to lower the upper “B” or “pay” line three inches, and as to omit the timber lagging from the side walls of the tunnel; and for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court’s previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing.
Seo. 3. Any suit brought under the provisions of this Act shall be instituted within one year from the date of the approval hereof, and the court shall consider as evidence in such suit any or all evidence heretofore taken by either party in the case of Allen Pope against the United States, numbered K-366, in the Court of Claims, together with any additional evidence which may be taken.
Sec. 4. From any decision or judgment rendered in any suit presented under the authority of this Act, a writ of certiorari to the Supreme Court of the United States may be applied for by either party thereto, as is provided by law in other cases.
Approved, February 27,1942.
Section 2 of the special act, in lines 6 to 11, gives the plaintiff a cause of action for excavation and concrete work done, but not paid for because the “B” or pay line of the tunnel was lowered by the contracting officer. As shown in finding XI of the court’s former decision, 76 C. Cls. 64, at page 74, there were 57 cubic yards of this excavation. The contract rate for excavation was $17 a yard. In line 2 of Section 2 of the special act, the plaintiff is given the right to recover at “contract rates,” hence he recovers $969 for this excavation.
Lines 11 and 12 of the special act, read in connection with what precedes them, give the plaintiff the right to recover [504]*504at contract rates for the excavation and concrete work which the plaintiff had to do because of the contracting officer’s direction to omit timber lagging from the side walls of the tunnel. The direction was given to save the Government money, as it would have had to pay for the timber at specified unit prices. But the result was that the walls, being friable, and not being held up by timbers, caved in extensively and the plaintiff was obliged to remove the caved-in materials and fill the spaces with concrete. There were 287 cubic yards of the caved-in materials, and hence 287 cubic yards of concrete. The contract price for concrete was $17 a yard, making $4,879 for the concrete. The contract price for excavation was also $17 a yard. The plaintiff therefore gets an additional $4,879 for removing these materials.
The greater amount of the plaintiff’s claim is covered by that provision of Section 2 of the special act which directs us to determine and render judgment at contract rates upon the plaintiff’s claim
for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method as described by the court1 and based on the volume of grout actually used, and the amount of grout to be as determined by the court’s previous findings2 based on the number of bags of cement used in the grout actually pumped into the dry packing.
The process of dry packing and grouting consisted of packing all spaces left between the concrete top of the tunnel and the natural earth or rock in place above the tunnel, with dry stones, and then pumping a mixture of one part of cement and two parts of sand, watered to make it flow easily, into the mass of stones. The cement mixture flowed into the spaces between the stones and when it hardened, created a rigid mass which would prevent cave-ins above the roof of the tunnel or the accumulation of masses of water there.
[505]*505The plaintiff dry-packed and grouted large areas of space above the tunnel. In pouring the concrete roof of the tunnel he left manholes at intervals through which the stones could be lifted and packed into the empty spaces. He placed upright pipes through the concrete, so that the liquid grouting could be pumped up to where it would flow into the packed stones. But no measurement of the spaces so packed and grouted was made before the spaces were filled. At the original trial of the case the plaintiff urged that the volume of the spaces could be deduced from the known number of bags of cement used to make grout to fill the voids in the spaces. It was known that, when any given space was dry-packed with stones, as these spaces were, the crevices between the stones constituted on the average 40% of the packed space. It was known how many bags of cement, mixed with sand and water to make grout as specified, it would take to make a cubic yard of grout. Thus the total number of cubic yards of grout, and of packed and grouted spaces could be computed from the known number of bags of cement used.
The court, in the plaintiff’s former suit, thought that computation by this method was not trustworthy, because it thought that large amounts of the grout mixed and pumped had not gone into dry-packed areas at all, but had gone into unpacked spaces in the earth or had been forced out into test holes or caved-in areas above the tunnel. We are now inclined to think that the liquid method of measurement is reasonably accurate. But in any event, the special act has given the plaintiff the right to have it used to measure his recovery, and it is, as a practical fact, the only method by which any measurement at all could now be made.
Computed by this method of measurement, the amount of space dry-packed and not otherwise paid for, is 4,746.9 cubic yards. The contract rate for dry packing is $3.00 per cubic yard. The plaintiff may therefore recover $14,240.70 for dry packing. The number of bags of cement used for grouting, and not otherwise paid for, was 18,790.7. The contract rate per bag for making grout out of the cement, and pumping the grout into place, was $3 per bag. The plaintiff may recover $56,372.10 for grouting.
[506]*506The plaintiff claims $81,277.00 for “excavation of materials which caved in over the tunnel arch,” 4,781 cubic yards at $17 per yard. The volume of these caved-in materials was not measured, and hence would have to be computed by the “liquid” measurement discussed above.
The Government urges that the plaintiff should not recover anything on this item of his claim. It says that, under the contract, the plaintiff was not entitled to be paid for the disposition of any materials which fell from outside the “B” or pay line, and that the special act creates no new cause of action for such work. The contract was explicit on this question. Section 58 of the specifications, quoted in finding 7, contains this sentence: “The contractor shall make all excavations in the tunnel in accordance with reference lines ‘A,’ ‘B,’ and £C’ as shown on the drawing and described in paragraph number 33, but with the understanding that no excavation removed beyond the ‘B’ line will be paid for * * *.” The plaintiff’s counsel suggests that when materials fell from above the B line into the tunnel space, and were thence removed, they were excavated from within the B line and hence should have been paid for, under the contract. That this was not the meaning of the contract is made plain by Section 48 of the specifications, quoted in finding 7, which shows that the quantities to be paid for were to be measured in place, “according to the lines shown on the drawing or called for by the specifications and by computations therefrom.” Thus, materials which fell in from beyond the B line could .'not have been measured for payment, and were not intended to be so measured. That the plaintiff so understood the contract is also shown by the fact that in his former suit here on the contract he made no claim that the contract provided for payment for removal of such materials, and the fact that in that suit the plaintiff testified repeatedly, as quoted in 100 C. Cls. 375, at 385, 386, that the only way in which he could be compensated under the contract for the disposition of this caved-in material was by being paid for dry packing and grouting the space left vacant by the cave-ins.
[507]*507The plaintiff urges that even though, under the contract, the plaintiff was under a duty to dispose of these materials without any separate compensation, the special act has given him a right to such compensation, and at the full contract rate of $17 per yard provided for excavation within the pay line. This asserted construction of the special act presents several difficulties.
First, it imputes to Congress an intention to create in the plaintiff a right to recover upon a claim to which the plaintiff, in the course of a long controversy followed by an extended litigation before the special act was passed, never asserted any right. Instead, the plaintiff had, in the previous litigation, expressly disclaimed any such right, in his testimony referred to above. What the plaintiff was complaining of in his former suit was that the Government had, in breach of contract, refused to pay him for his dry packing and grouting of the spaces left vacant by the cave-ins, and had thereby left him uncompensated for the disposition of the caved-in materials, as well as for the dry packing and grouting. The plaintiff did, in the former case, allege misrepresentations by the Government as to the nature of the soil through which the tunnel was to be built, and interferences by Government agents with his dry packing and grouting, by giving conflicting orders and in other ways. The court in the former case awarded the plaintiff the sums of $13,290.22 and $11,225 for unwarranted interference with his dry packing and grouting and with the order in which he did his work. See 76 0. Cls. at pp. 87 and 100. It decided that the Government had not been guilty of misrepresentation. If the plaintiff urged upon Congress any claim based upon these matters, there is no intimation either in the special act or the committee reports that Congress intended to create, for the plaintiff, rights to recover for them.
Second. As we have said, the plaintiff’s grievance in regard to disposition of caved-in materials, dry packing, and grouting, throughout the former litigation was that, by being refused payment for the dry packing and grouting at the unit prices, he was being left uncompensated for all of the three related activities. He did not ask this court to give him [508]*508separate compensation for disposition of caved-in materials, and on the basis of his whole conduct of the case, and of his personal testimony, no intimation can be found of any legal or moral basis for such a claim. It could not possibly have been error on the part of the court to fail to give the plaintiff something which he did not ask for, and which he expressly disclaimed any right to have. Nor could it have been any defect in the law, or any failure of the law to accord with morals or good conscience, that caused the court not to award him something which he did not ask for. Yet the obvious purpose of the special act was to create specially, for the plaintiff, such rights as a correct decision under the general law, or a decision under law which accorded with good morals, if the general law did not, would have given him.
Third. Although we said, in our consideration of the constitutionality of the special act, 100 C. Cls. 375, 385, that the act, in effect, directed us to render a judgment for the plaintiff on the item now under discussion, we have, pursuant to the decision of the Supreme Court, given further consideration to the text of the special act and its legislative history, in order to ascertain the intent of Congress.
Section 2 of the act provides that we shall “render judgment at contract rates” for the two categories of work later specified in the section. The first, as we have seen, was excavation and concrete work performed in complying with change orders lowering the B line and omitting timber lagging from the side walls. As to these items, the contract rate is easily applied, since the placing of the concrete and the excavation or removal of the materials must be paid for separately if it is paid for at all. Though the cave-ins from the side resulting from the omission of the timber lagging fell from outside the pay line, the cause of their fall was the action of the Government’s agent in omitting the lagging, hence the Government was morally obligated to pay for their removal, and the only applicable contract rate was, as we have said, the excavation rate.
[509]*509The second item covered by Section 2, for which we are to render judgment at contract rates, is
for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method * * * and the amount-of grout to be as determined * * * based on the number of bags of cement used * * *.
The contract rate of compensation for disposition of materials caving in from above the tunnel, and for dry packing and grouting the spaces from which they had fallen, was the rate of payment for dry packing and grouting. The specifications, in Section 58, expressly provided that there would be no payment for materials outside the B line. See finding 7. Section 62 provided for payment for dry packing and grouting. The plaintiff intended that his compensation for removal of these cave-ins should come in his payment for filling the spaces. He protested on this ground when it was proposed that the voids be not filled at all, and brought suit on this ground when he was directed to fill the voids, but was not paid for doing so. He testified in the original case:
The manner provided in the contract for reimbursing me for hauling out of the tunnel whatever rock or earth fell into it was covered in the compensation allowed me for dry packing and grout.
❖ * * ❖
The only way I would get paid for removing that earth that fell down was when I refilled it with dry packing and grout and my price for grout included the cost of removing the earth from the twrmel. [Italics added.]
This and other testimony by the plaintiff to the same effect is quoted in our former opinion, 100 C. Cls. 375, 385, 386.
In the face of these statements, the truth of which cannot be disputed, we cannot conclude that the “contract rate” for the removal of the caved-in materials was, not only the amounts which the plaintiff had added to his dry packing and grouting unit price bids to cover this very work, but an [510]*510additional amount, considerably larger than both of the other amounts put together. It is not strange that the plaintiff, and Congress, should have mentioned the excavation, as well as the dry packing and grouting. Throughout the controversy the plaintiff had complained bitterly that he had removed the caved-in materials, and had dry packed and grouted the spaces from which they fell, and had been paid nothing for doing all three of the jobs. And he had consistently urged upon the contracting officer, and upon this court that, under the contract he was entitled to be paid the unit prices set in the contract for the dry packing and grouting, and thereby be paid for all three of the jobs. There was never any doubt in his mind, or any uncertainty in his claims, in those times, as to what the “contract rate” was. If he had openly presented to Congress a claim to be separately paid $17 a yard for the removal of the materials, in addition to the amount of his unit price bids for dry packing and grouting, what possible answer could he have made if the committee had become aware of his former claims and testimony ? The inconsistency of the claim with his former position in this court would have undermined the whole basis of his complaint to Congress, which was that the court had erred in denying his claim. We think that in fact he had no intention of making such a claim to Congress, and that we have no right to seize upon the words “contract rates” used in the statute, search the contract for a rate, and apply it to work which the contract itself expressly said, and the plaintiff repeatedly said, carried no separate rate of compensation at all.
It is said that there might be some equity in our finding additional compensation for the plaintiff, because he claimed, unsuccessfully, in his former suit that the Government had misrepresented the geological formation, and that there was more material to be removed, and more dry packing and filling to be done, than he had anticipated. This court, in the former case, considered the plaintiff’s claim of misrepresentation, and concluded that there had been none. The plaintiff in his statement to Congress did not press any claim of tortious misrepresentation, or suggest that this court had erred in holding that there was none. In his narrative de[511]*511scription he speaks of “representations” as to the character of formations, but only to show why it was that there were more units of work than were anticipated. He does say that the specifications “warranted” the geological formations shown on them. The only apparent point of this statement is the same as that concerning the representations. There is no suggestion in his statement that he would not be adequately paid if he received the unit prices set by the contract for the work, even though there were more units of work than had been anticipated. If he had so claimed, it would, presumably, have occurred to the committee that, at least as to the estimated amount of the yardage stated in the specifications, there could be no possible equity in his claim for separate compensation for excavation, or for damages, because, as to the estimated amount, he knew he would have to remove it and the contract expressly said that he would not be separately paid for doing so.
The plaintiff urges that because there was a much larger volume of cave-ins from above the tunnel arch than had been anticipated, he was put to extra expense in that it was necessary to carry the materials out of the tunnel and then bring back those of the caved-in stones which were suitable for use in dry packing. He urges that this was a prime consideration which caused Congress to give him, in the special act, the right to the full contract rate for excavation for these materials.
In the plaintiff’s petition in the former case, K-366, Section VI of the petition, beginning on page 4 of the record of that case, is headed “Government’s Interference With Dry Packing and Grouting.” He there narrates various acts of alleged interference which increased his expense, and, at the end of the section, itemizes them and states the amount which he claims for each. On page 9 appears the following, with regard to the cost of excessive handling of materials:
(g) Specifications Par. 58 provided that suitable material excavated in the tunnel might be used for dry packing. Plaintiff rightfully expected to use such material as the work progressed and was ready to proceed thus in the untimbered sections on December 2, 1925. There was no storage space in the tunnel and in order to [512]*512proceed it was necessary either to dry pack or to remove the stone from the tunnel. The officer would not allow the dry packing to proceed and required the stone to be removed from the tunnel and to be brought back again into the tunnel later, which procedure required the stone to be handled 10 more times than would have been otherwise necessary and which handling including 15% for incidentals amounts to $12,598.00.
The commissioner of this court, after hearing the evidence, found, at page 76 of the record of K-366, that the plaintiffs additional expense, including the costs of supervision, for “Extra handling of stone in dry pack,” was $7,000. This court, in K-366 in its finding V, 76 C. Cls. 64, at page 70, dealt with the plaintiff’s claim for damaging interferences with his work. It said, inter alia, in that finding: “The contractor had to handle by hand the stone required for such dry packing several times more than would have been necessary had the contractor been allowed to carry out his plan.” After reciting other interferences, the court, at the end of the finding, said, at page 72:
The extra expenses necessarily so incurred by the contractor, including a reasonable allowance for the time of the contractor himself, the wages actually paid the foreman and steady-time men during the period of performance, etc., amount to $13,290.22.
This $13,290.22 was included in the judgment in K-366 and has been paid to the plaintiff.
The above recital shows, concerning the extra cost of handling rock ultimately used as dry pack, which extra cost is urged as a reason why we should conclude that Congress intended to award the plaintiff a right to $81,277, that (1) the plaintiff in the former case, K-366, asked for only $12,598 for this expense, which amount included 15% for incidentals; (2) the commissioner of this court, after hearing the evidence, found that the extra expense was $7,000; (3) this court, in the former case, included in its judgment for the plaintiff the sum of $13,290.22, which, it is fairly certain from the court’s language, included whatever amount of expense the court thought was attributable to the extra handling of stone. We think that the plaintiff did not intend to obtain from [513]*513Congress a right to $81,277 based upon a claim which he had valued at about one-seventh of that amount in his former suit, and which claim, in some unspecified amount, had been included in the former judgment and paid to him.
We cannot say that the “contract rate” for the disposition of these materials includes, in addition to the $3 per yard for dry packing and $3 per bag of cement for grouting, $17 per yard for removal, which removal the contract expressly provided should not be paid for.
The plaintiff, in his statement to Congress, after quoting the statement of the court that it had no jurisdiction to grant him a new trial after the lapse of so long a time, and that he would have to seek relief, if at all, in Congress, said:3
All he (plaintiff) is asking is that the Congress, which alone has jurisdiction, direct the court to consider the case again and grant him relief as was denied him heretofore, and give him judgment * * *.
Hence, it is pursuant to the very suggestions made by the court itself, both in its printed decision of December 6, 1937, and in its advices from the bench when the claimant appeared there with his last motion for new trial, that claimant now seeks relief through an act of the Congress which will confer upon the court jurisdiction to readjudicate his case.
In view of this statement to Congress, the plaintiff could not have intended, when he made it, to induce Congress to create in him a cause of action, half of which would consist of a claim not included, but on the other hand, expressly disclaimed by the plaintiff in the former suit.
In the plaintiff’s statement to Congress, he treated under separate headings “Court exhibits establishing claim resulting from changes in contract plans,” and “Other items of work for which claimant has not been paid.” See pages 6, 7, and 8 of Eeport No. 865, referred to above. Under the second of these headings the plaintiff recites the facts of the cave-ins from the roof of the tunnel, and of the dry packing and grouting, done at the direction of the Government. He quotes the statement of the court that “No payment has been made for any of the dry packing nor [514]*514grout thus required to be used” and that “We have said that the plaintiff might recover for the total area dry packed and grouted. The obstacle in the way is the lack of proof defining the extent of space dry packed.” The plaintiff then says:
The pending bill would enable the court to determine the amount of dry packing by the so-called liquid method “as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court’s previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing.” From such evidence as has heretofore been presented to the court, and from such additional evidence as may be required, it would seem that the court can reasonably determine what dry packing and grout were supplied by the contractor for which he has never been paid.
There is not a word in this statement about any separate payment for the disposition of the materials which fell in from the top of the tunnel. There is no suggestion as to how the court should measure the amount of these materials, if their disposition was to be separately paid for, though- the method of measurement was the very heart of the act, the plaintiff having lost the part of his former suit relating to the spaces left by these cave-ins solely for the reason that the court concluded that there was lack of proof of the extent of the spaces. If we were to conclude that the special act granted the plaintiff a right to a separate recovery for the removal of the caved-in materials, we would be left with no direction, except by inference, as to how to measure the volume of them. We do not think that the plaintiff, in securing a special act written for the particular purpose of meeting a defect of proof which had been fatal to his former case, would have left the measure of half of his recovery to inference. And if the plaintiff and Congress intended that he should have a separate claim for the disposition of these materials, and if they did not intend that we should infer from the silence of the special act that we should measure the cave-ins by the same deduc'tive method by which we were directed to measure the volume of the dry packing, they were deliberately taking [515]*515a chance that the court would now, as it did in the original case, regard the liquid method of measurement as too untrustworthy to be the basis for a judgment, and that the plaintiff might recover nothing on this item, even under the special act. We have no idea that any such gap was inadvertently left in an act so meticulously drawn to accomplish so specific a purpose.
The Committee on Claims of the House of Representatives, in recommending the passage of the special act, summed up the purpose of the act as follows:4
There is no questioning the fact that he was put to additional items of expense by reason of the change orders of the contracting officer; that the claimant did supply certain dry packing (stones put into place) and grout (liquid cement mortar pumped into the spaces between the dry packing); that this was done under orders and supervision of the contracting officer; and it was accepted by the Government inspectors after inspection thereof.
The reported bill would enable the court to correct its error; reimburse him for the expenses to which he was put as the result of the change orders; determine the amount of dry packing “by the liquid method as described by the court and based on the volume of grout actually used” and determine the amount of grout supplied as established “by the court’s previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing.”
This statement by the Committee shows exactly the items upon which the plaintiff was to be given a right to recover, and the items there recited are the ones on which we have herein given the plaintiff judgment.
We have, hereinabove, allowed the plaintiff $4,879 for excavating 287 cubic yards of materials which fell in from the sides of the tunnel because, at the direction of the Contracting Officer, the timber lagging which would have prevented those cave-ins was omitted. That excavation, for which we allow compensation, is on a different footing from the removal of the materials which fell in from above the [516]*516tunnel. Tbe former was made necessary by tire express direction of the Government to omit the timber lagging which would have prevented it. The provision of the contract that payment would not be made for “excavation removed beyond the ‘B’ line” would not, in equity, excuse the Government from paying for such excavation if it was made necessary by the Government’s direction. The special act expressly states that this work was “found by the court to have been performed by the said Pope in complying with certain orders of the contracting officer.” The court’s finding XI, 76 C. Cls. 64,74, bears this out. That finding also shows exactly how many yards of this excavation there were, and the contract rate for it. The plaintiff, in his former suit, claimed this amount, and failed to recover it only because the order of the contracting officer did not comply with the formalities required by the contract. 76 C. Cls. 96, 97. Payment for the concrete which filled the spaces left by these cave-ins was never intended to include payment for the removal of the caved-in materials.
On the other hand, the cave-ins from above the tunnel were, as we have said, not the result of any direction of the Contracting Officer; they were expressly excluded from payment by the contract; payment for their removal was not sought in the former suit except as such payment would be included in payments for dry packing and grouting the void spaces; no direction is given in the special act as to how their volume should be measured, unless that direction is obtained by inference; the committee report lacks any suggestion or hint that their removal is to be paid for, in addition to payment for dry packing and grouting. Our different treatment of the two items of excavation, then, is not only justified but compelled by the plaintiff’s different treatment of them throughout this long controversy, and by the whole history of the former litigation and the special act.
In Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 24, 49, the Supreme Court said:
By a familiar rule, every public grant of property, or of privileges or franchises, if ambiguous, is to fee construed against the grantee and in favor of the public; because an intention, on the part of the government, to [517]*517grant to private persons, or to a particular corporation, property or rights in which the whole public is interested, cannot be presumed, unless unequivocally expressed or necessarily to be implied in the terms of the grant; and because the grant is supposed to be made at the solicitation of the grantee, and to be drawn up by him or by his agents, and therefore the words used are to be treated as those of the grantee; and this rule of construction is a wholesome safeguard of the interests of the public against any attempt of the grantee, by the insertion of ambiguous language, to take what could not be obtained in clear and express terms.
See also 2 Lewis’ Sutherland Statutory Construction, 2nd Ed. Sec. 548; Crawford Interpretation of Laws, Sec. 245.
It is said that the jurisdictional act under which we are proceeding is plain and unambiguous. The length of the opinions which it has evoked seems to throw doubt upon that proposition. And of course the act cannot be applied and was never intended to be applied without examining the contract and the findings and opinion in the former suit to which the act refers. When we consult the contract, as we must, to ascertain the “contract rates” and find that the contract rate for excavating materials from inside the pay line is $17 a yard, but that the contract says, “no excavation beyond the CB’ line will be paid for,” it would seem that we are faced with a problem of construction. If we at that point were inclined to be literal and to rely on “plain meaning” we would have to say, without further investigation, that the plaintiff was to get nothing for the excavation of the caved-in materials. We would not, however, be justified in stopping there, without ascertaining whether that literal, or “plain meaning” construction did not thwart the intention of Congress. So we go further into the relevant data to find out what the actual intent of the statute is, consistent with its language. We find that, as the plaintiff understood the contract when he bid for it, the contract rate for removing caved-in materials was included in the unit prices which he bid for dry packing and grouting, so that if he gets paid for those processes he will have been paid the “contract rate” for excavating the materials. We find that the plaintiff, in pressing his claim before Congress, summed up the purpose [518]*518of this part of the bill as enabling the court to give him a judgment for his dry packing and grouting. We find that the Committee summed up for Congress the purpose of the bill in substantially the same language. We therefore see no sufficient reason to hold that, after we have given the plaintiff a judgment which pays him, according to his repeated statements, for excavation, dry packing, and grouting, at contract rates, we should add to that judgment an additional sum, again paying him for one of the three operations for which he has already been paid, but the second payment being in an amount substantially larger than the “contract rate” for all three operations put together.
The plaintiff’s statement to Congress, the Committee reports, and the special act are completely consistent with the plaintiff’s claims and testimony in the former suit. They point to items on which the plaintiff sued but failed to recover in the former suit. As to those of the grounds upon which recovery was denied for lack of proof, they prescribe what should be adequate proof in this suit. They do not intimate that he is to recover more now than he could have recovered then even if the court or the law had not then been unduly technical. When we so interpret the special act as to make the plaintiff’s former claims and testimony, his former failure in this court, his statement to Congress, the report of the Committee, which that statement induced, and the special act, one consistent whole, we have no doubt that we are giving to the plaintiff the full measure of relief which Congress intended him to have.
The plaintiff may recover $81,339.80. It is so ordered.
JoNES, Judge, and Whauet, Chief Justice, concur.