A-83242, MARCH 24, 1937, 16 COMP. GEN. 882

A-83242, MARCH 24, 1937, 16 COMP. GEN. 882

TRANSPORTATION OF BITUMINOUS COAL - REDUCTION OF CARRIERS' UNREASONABLE RATES BY PRIVATE PETITION - EXCESSIVE CHARGES ON GOVERNMENT SHIPMENTS - GENERAL ACCOUNTING OFFICE RIGHT OF SET-OFF NOTWITHSTANDING STATUTE OF LIMITATIONS AMOUNTS REPRESENTING TRANSPORTATION CHARGES ON GOVERNMENT SHIPMENTS OF BITUMINOUS COAL, IN CARLOADS, FROM MINES IN ILLINOIS TO DESTINATIONS IN MISSOURI IN EXCESS OF THE REASONABLE RATES PRESCRIBED IN ILLINOIS COAL TRAFFIC BUREAU V. ARKANSAS VALLEY I.RY.CO; 161 I.C.C. 337, PROPERLY MAY BE SET-OFF BY THE GENERAL ACCOUNTING OFFICE AGAINST AMOUNTS OTHERWISE DUE THE CARRIER NOTWITHSTANDING THE GOVERNMENT WAS NOT A PARTY TO THE PETITION EFFECTING THE REVISION IN RATES, OR THAT THE PERIOD WITHIN WHICH COMPLAINT MIGHT BE FILED WITH THE INTERSTATE COMMERCE COMMISSION HAD EXPIRED, THE PROCEEDING BEFORE THE COMMISSION BEING A MATTER OF PUBLIC CONCERN AND INURING TO THE BENEFIT OF ALL REQUIRED TO PAY THE UNREASONABLE RATES, AND STATUTES OF LIMITATIONS, IN THE ABSENCE OF STATUTORY PROVISION OTHERWISE, NOT RUNNING AGAINST THE FEDERAL GOVERNMENT.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MARCH 24, 1937:

THE MISSOURI-KANSAS-TEXAS RAILROAD CO. REQUESTS REVIEW OF SETTLEMENT T- 104423, JUNE 22, 1936, IN WHICH THERE WAS DISALLOWED $278.51 OF THE SUM OF $1,742.91 CLAIMED AS FREIGHT CHARGES ON BILL 60 (DECEMBER 1935), AND FROM THE BALANCE OF $1,464.40 FOUND DUE, THERE WAS DEDUCTED $664.56, TO RECOVER, PURSUANT TO REPORT AND RECOMMENDATION OF THE WAR DEPARTMENT, FREIGHT CHARGES COLLECTED BY THE CARRIER IN EXCESS OF THOSE ACCRUING ON THE BASIS OF RATES FOUND REASONABLE BY THE INTERSTATE COMMERCE COMMISSION FOR THE TRANSPORTATION OF BITUMINOUS COAL FROM ILLINOIS MINES TO SEVERAL DESTINATIONS IN MISSOURI.

UNDER BILL 60 THE CARRIER CLAIMED FREIGHT CHARGES TOTALING $1,742.91 ON SHIPMENTS OF YELLOW PINE PILING (TOTAL NET WEIGHT 538,600 POUNDS) FROM PELAHATCHIE, MISS., TO BERNHEIMER, MO.--- ROUTED "CANTON AND CARTHAGE RR; IC; M-K-T-RR: "--- UNDER GOVERNMENT B/L WE-127834, 127835, 127836, AND 127837, EACH DATED NOVEMBER 1, 1935. THERE WAS ALLOWED UNDER THE ABOVE SETTLEMENT, $1,464.40, COMPUTED AT A NET RATE OF 27.189 CENTS. THE APPLICABLE RATE ON THE DATE THE SHIPMENTS MOVED WAS 34.5 CENTS PER HUNDREDWEIGHT. SEE AGENT SPEIDEN'S TARIFF 199, I.C.C. NO. 1377. ALL CARRIERS PARTICIPATING IN THE MOVEMENT ARE EQUALIZING CARRIERS AND AGREE TO ACCEPT A NET RATE OF 27.189 CENTS, COMPUTED AS FOLLOWS:

TABLE TO MERIDIAN ------------ 10.0 LESS 50 PERCENT LAND GRANT --- --- 5.000 TO EAST ST. LOUIS ------ 11.9 LESS 19.421 PERCENT LAND GRANT --- 9.589 TO DESTINATION --------- 12.6 NET ------------------ ----------- 12.600

GROSS RATE --------- 34.5 NET RATE ----------------- 27.189

DIVISION: I.C. SYSTEM D/S 262-A, SUP. 151, M.K.T. D/S 4395-B.

THE RATE APPLIED TO THE SHIPMENTS IN QUESTION IS ACCORDINGLY CORRECT AND THE DISALLOWANCE OF $278.51 IS SUSTAINED.

IN THE CARRIER'S REQUEST FOR REVIEW OF THE DEDUCTION OF $664.56 IT IS POINTED OUT THAT THE GOVERNMENT WAS NOT A PARTY TO THE COMPLAINT IN I.C.C. DOCKET 23424 AND SINCE IT HAS NOT FILED A COMPLAINT WITH THE INTERSTATE COMMERCE COMMISSION WITHIN THE 2-YEAR PERIOD STIPULATED IN SECTION 16 (3) OF THE INTERSTATE COMMERCE ACT, AS AMENDED, THE DEDUCTION WAS UNAUTHORIZED.

REDUCED RATES ON BITUMONOUS COAL, IN CARLOADS, FROM THE SOUTHERN ILLINOIS COAL DISTRICT TO CERTAIN DESTINATIONS IN MISSOURI WERE PRESCRIBED IN ILLINOIS COAL TRAFFIC BUREAU V. ARKANSAS VALLEY I.RY.CO., 161 I.C.C. 337, IN WHICH IT WAS STATED THAT THE CARRIERS WOULD BE EXPECTED TO REVISE THEIR RATES IN HARMONY THEREWITH TO OTHER DESTINATIONS. THE REDUCED RATES BECAME EFFECTIVE ON AUGUST 20, 1930. THEREAFTER, COMPLAINTS IN E. H. MILTON AND SONS, ET AL., 179 I.C.C. 200, DECIDED NOVEMBER 23, 1931, ALLEGED TO BE UNREASONABLE THE RATE ON BITUMINOUS COAL IN CARLOADS, FROM MINES IN ILLINOIS IN THE BELLEVILLE, CENTRALIA, DUQUOIN, SOUTHERN ILLINOIS, AND SPRINGFIELD DISTRICTS TO 16 DESTINATIONS IN MISSOURI. REPARATION WAS AWARDED ON THE BASIS OF THE REVISED SCALE OF REASONABLE RATES PRESCRIBED IN ILLINOIS COAL TRAFFIC BUREAU V. ARKANSAS VALLEY I.RY.CO., SUPRA.

THE CHIEF OF ENGINEERS, WAR DEPARTMENT, HAD MADE SHIPMENTS SIMILAR TO THOSE FOR WHICH REPARATION WAS AWARDED TO OTHERS AND FOR WHICH SHIPMENTS THE CARRIER HAD CLAIMED AND HAD BEEN PAID FREIGHT CHARGES AT THE EXCESSIVE AND UNREASONABLE RATES. THE WAR DEPARTMENT PRESENTED A CLAIM AGAINST THE CARRIER ON THE BASIS OF THE RATES ON WHICH REPARATIONS WERE AWARDED TO OTHER SHIPPERS. THE CLAIM WAS DECLINED BY THE CARRIER FOR THE AFOREMENTIONED REASONS--- THAT THE GOVERNMENT WAS NOT A PARTY TO THE PETITION IN E. H. MILTON AND SONS ET AL. V. ALTON AND SOUTHERN RAILROAD ET AL., SUPRA, AND THAT THE ITEMS CLAIMED ARE BARRED BY THE RUNNING OF THE STATUTE OF LIMITATIONS AS PROVIDED IN PARAGRAPH (3), SECTION 16, INTERSTATE COMMERCE ACT. THE OFFSET WITH RESPECT TO WHICH REVIEW IS NOW REQUESTED WAS THEREAFTER EFFECTED IN SETTLEMENT T-104423, JUNE 22, 1935, IN THE AMOUNT OF $664.56.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE REQUIRED TO SETTLE ALL CLAIMS FOR AND AGAINST THE UNITED STATES. SEE SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24; 15 COMP. GEN. 304. UNDER THE ACCOUNTING PROCEDURE ESTABLISHED PURSUANT TO THE ACT OF JUNE 10, 1921, SUPRA, CLAIMS ARISING AGAINST DEBTORS IN THE VARIOUS DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE REPORTED TO THIS OFFICE WHERE SUCH CLAIMS AS WELL AS CREDITS LAWFULLY ARE FOR CONSIDERATION IN THE SETTLEMENT OF ACCOUNTS. IN A CASE WHERE THE VALIDITY OF THE DEBT AS REPORTED IS ESTABLISHED COLLECTION THEREOF IS FOR EFFECTING THROUGH OFFSET WITHOUT THE NECESSITY OF INCURRING THE EXPENSE OF EITHER JUDICIAL OR QUASI JUDICIAL PROCEEDINGS. SEE BARRY V. UNITED STATES, 229 U.S. 47; TAGGART V. UNITED STATES, 17 CT.CLS. 322, AND A-15617, SEPTEMBER 8, 1926, AND OCTOBER 21, 1926.

THE INDEBTEDNESS COLLECTED BY THE OFFSET REPRESENTS THE EXCESS OVER REASONABLE RATES, AS FOUND BY THE INTERSTATE COMMERCE COMMISSION IN E. H. MILTON AND SONS ET AL. V. ALTON AND SOUTHERN RAILROAD ET AL., SUPRA. IT WAS NOT NECESSARY THAT THE GOVERNMENT SHOULD INTERVENE AS A PARTY TO THIS ACTION BEFORE THE COMMISSION. THE PROCEEDING WAS A MATTER OF PUBLIC CONCERN IN WHICH THE WHOLE BODY OF SHIPPERS WAS INTERESTED, AND AS STATED IN PHILLIPS V. GRAND TRUNK RY., 236 U.S. 662, 665,"THE FINDING THEREON WAS GENERAL IN ITS OPERATION AND INURED TO THE BENEFIT OF EVERY PERSON THAT HAD BEEN OBLIGATED TO PAY THE UNJUST RATE.'

THE CARRIER URGES, AS OBJECTION TO THE GOVERNMENT'S RIGHT TO RECOUPMENT OF THE UNLAWFUL CHARGES, THE PROVISION OF SECTION 16 (3) OF THE INTERSTATE COMMERCE ACT THAT "ALL COMPLAINTS FOR RECOVERY OF DAMAGES SHALL BE FILED WITH THE COMMISSION WITHIN 2 YEARS FROM THE TIME THE CAUSE OF ACTION ACCRUES, * * *"

AS TO THIS CONTENTION, THE GENERAL RULE--- GROUNDED UPON THE NECESSITY AS A MATTER OF PUBLIC POLICY FOR PRESERVING RIGHTS, REVENUES, AND PROPERTY FROM INJURY AND LOSS BY THE NEGLIGENCE OF PUBLIC OFFICERS--- IS THAT, IN THE ABSENCE OF AN ACT OF CONGRESS PRESCRIBING A LIMITATION FOR A PARTICULAR SUIT OR CLASS OF SUITS BY THE UNITED STATES--- WHICH CLASS OF AGAINST THE FEDERAL GOVERNMENT. SEE 37 CORPUS JURIS 711, AND THE NUMEROUS AUTHORITIES CITED THEREIN.

ACCORDINGLY, THE ACTION IN EFFECTING THE SET-OFF WAS PROPER AND THE SETTLEMENT OF JUNE 22, 1935, IS AFFIRMED.