A-12389, MARCH 16, 1926, 5 COMP. GEN. 729

A-12389: Mar 16, 1926

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FORFEITURES A CLAIM OF A CARRIER FOR ADDITIONAL COMPENSATION BASED ON THE RENDITION OF A HIGHER CLASS OF SERVICE IN TRANSPORTING THE MAIL THAN THAT UPON WHICH PAYMENT WAS BASED DOES NOT INVOLVE THE REMISSION OF FINES. WAS ACTUALLY RENDERED NO ADDITIONAL ALLOWANCE CAN BE MADE. 1926: THERE IS FOR CONSIDERATION THE CLAIM OF THE GRAND RAPIDS. THE AMOUNT CLAIMED IS THE AGGREGATE OF DEDUCTIONS STATED TO HAVE BEEN MADE BY A FORMER POSTMASTER GENERAL WITH RESPECT TO PAYMENTS FOR SERVICES COVERING THE PERIOD FROM DECEMBER. BECAUSE THE MAILS TRANSPORTED BY THIS RAILWAY COMPANY WERE CARRIED IN PASSENGER CARS WITH COMPARTMENTS INSTEAD OF IN PASSENGER CARS WITHOUT COMPARTMENTS. DOES NOT DISCLOSE THE REASONS FOR THE ACTION BUT IT IS ACCOMPANIED BY AN AFFIDAVIT FROM THE VICE PRESIDENT AND GENERAL MANAGER OF THE COMPANY TO THE EFFECT THAT WHILE THE SERVICE WAS RENDERED IN CARS HAVING A COMPARTMENT.

A-12389, MARCH 16, 1926, 5 COMP. GEN. 729

POSTAL SERVICE - REMISSION OF FINES, PENALTIES, AND FORFEITURES A CLAIM OF A CARRIER FOR ADDITIONAL COMPENSATION BASED ON THE RENDITION OF A HIGHER CLASS OF SERVICE IN TRANSPORTING THE MAIL THAN THAT UPON WHICH PAYMENT WAS BASED DOES NOT INVOLVE THE REMISSION OF FINES, PENALTIES, OR FORFEITURES, UNDER SECTION 409, REVISED STATUTES, AS AMENDED. IN THE ABSENCE OF SATISFACTORY EVIDENCE THAT A HIGHER CLASS OF SERVICE, THAN THAT REPORTED BY THE PRESIDENT AND GENERAL MANAGER OF THE RAILROAD CONCURRENTLY WITH THE RENDITION, WAS ACTUALLY RENDERED NO ADDITIONAL ALLOWANCE CAN BE MADE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 16, 1926:

THERE IS FOR CONSIDERATION THE CLAIM OF THE GRAND RAPIDS, GRAND HAVEN AND MUSKEGON RAILWAY CO. FOR $599.63, ON ACCOUNT OF TRANSPORTATION CHARGES ON MAIL ROUTE NO. 309114. THE AMOUNT CLAIMED IS THE AGGREGATE OF DEDUCTIONS STATED TO HAVE BEEN MADE BY A FORMER POSTMASTER GENERAL WITH RESPECT TO PAYMENTS FOR SERVICES COVERING THE PERIOD FROM DECEMBER, 1920, TO MARCH 4, 1923, BECAUSE THE MAILS TRANSPORTED BY THIS RAILWAY COMPANY WERE CARRIED IN PASSENGER CARS WITH COMPARTMENTS INSTEAD OF IN PASSENGER CARS WITHOUT COMPARTMENTS. THE DISTINCTION BETWEEN THE TWO CLASSES OF SERVICE ARISES UNDER INTERSTATE COMMERCE COMMISSION ORDER OF AUGUST 7, 1920, AS PUBLISHED IN SECTION 1301 OF THE POSTAL LAWS AND REGULATIONS, 1924.

THIS ORDER PRESCRIBED THE RATES TO BE CHARGED FOR THE TRANSPORTATION OF MAIL BY URBAN OR INTERURBAN ELECTRIC RAILWAY CARRIERS--- ALLOWING A HIGHER RATE WHEN TRANSPORTED IN CARS CONSTRUCTED AND RUN PRIMARILY FOR PASSENGER SERVICE WITH NO SEPARATE COMPARTMENTS FOR MAIL, BAGGAGE, AND EXPRESS, AND A LOWER RATE WHEN TRANSPORTED IN BAGGAGE OR EXPRESS CARS OR IN COMPARTMENTS FOR BAGGAGE AND EXPRESS IN PASSENGER CARS.

AN INVESTIGATION BY THE INSPECTION SECTION OF THE DIVISION OF RAILWAY ADJUSTMENTS, OFFICE OF THE SECOND ASSISTANT POSTMASTER GENERAL, CONDUCTED SOME TIME PRIOR TO DECEMBER 31, 1923, RESULTED IN A RECOMMENDATION FOR REMISSION OF SUCH DEDUCTIONS FROM MARCH 5, 1923, TO DECEMBER 31, 1923, WHICH HAS BEEN ACCOMPLISHED, AND PAYMENT FOR THE HIGHER CLASS OF SERVICE HAS BEEN MADE FROM THE LAST-MENTIONED DATE. THE REPORT OF THE INSPECTION SECTION DATED JUNE 23, 1925, DOES NOT DISCLOSE THE REASONS FOR THE ACTION BUT IT IS ACCOMPANIED BY AN AFFIDAVIT FROM THE VICE PRESIDENT AND GENERAL MANAGER OF THE COMPANY TO THE EFFECT THAT WHILE THE SERVICE WAS RENDERED IN CARS HAVING A COMPARTMENT, THE COMPARTMENT WAS PROVIDED WITH SEATS AND REGULARLY USED FOR PASSENGERS.

THE PRESENT POSTMASTER GENERAL, BY LETTER DATED OCTOBER 1, 1925, CONSENTS TO PAYMENT OF THE ALLOWANCE OF THIS CLAIM AS A REMISSION OF A FINE, FORFEITURE, OR PENALTY UNDER THE PROVISIONS OF SECTION 409, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1266.

UNDER DATE OF MARCH 3, 1926, THE POSTMASTER GENERAL SUBMITTED A SUPPLEMENTAL REPORT TO THE EFFECT THAT ALL OF THE DEDUCTIONS IN QUESTION WERE BASED ON SIMILAR EVIDENCE, AS A SAMPLE OF WHICH HE FORWARDED COPIES OF REPORTS DATED JANUARY 8 AND FEBRUARY 4, 1921, SIGNED BY THE PRESIDENT AND GENERAL MANAGER OF THE RAILWAY STATING THAT DURING THE RESPECTIVE MONTHS OF DECEMBER, 1920, AND JANUARY, 1921,"MAIL WAS CARRIED IN CARS WITH BAGGAGE COMPARTMENT ON THE FOLLOWING TRIPS," FOLLOWED BY AN ITEMIZED CHRONOLOGICAL LIST OF VARIOUS DATES DURING THE MONTH.

IT IS EVIDENT, UNDER THE CIRCUMSTANCES, THAT THE ADJUSTMENTS AS MADE ON THE BASIS OF THE LOWER CLASS OF SERVICE DID NOT INVOLVE ANY FINES, PENALTIES, OR FORFEITURES FOR FAILURE TO RENDER SERVICE AS ORDERED, SUCH AS MIGHT BE REMITTED UNDER SECTION 409, REVISED STATUTES, BUT WERE BASED ON THE ESTABLISHED RATES FOR THE CLASS OF SERVICE DETERMINED -- AND SHOWN BY CARRIER'S ADMISSIONS--- TO HAVE BEEN RENDERED BY THE CARRIER.

THE SUBSEQUENT REPORT BY INVESTIGATORS OF THE POSTAL SERVICE AND THE AFFIDAVIT BY THE VICE PRESIDENT AND GENERAL MANAGER OF THE RAILWAY ON ON JUNE 6, 1924, TO THE EFFECT THAT THE COMPARTMENTS WERE FURNISHED WITH SEATS AND REGULARLY USED FOR PASSENGERS MAY NOT BE ACCEPTED AS AUTHORIZING THE REOPENING OF THE SETTLEMENTS BASED ON THE FORMER REPORT BY THE THEN PRESIDENT AND GENERAL MANAGER OF THE ROAD MADE CONCURRENTLY WITH THE FURNISHING OF THE SERVICE THAT THEY WERE BAGGAGE COMPARTMENTS. EVIDENCE OF THE CONDITION AND USE OF THE COMPARTMENTS IN 1923 OR 1924 IS NOT CONCLUSIVE AS TO THEIR PRIOR CONDITION AND USE. IT IS POSSIBLE, ALSO, THAT THEY MIGHT HAVE BEEN FURNISHED WITH SEATS FOR PASSENGER USE IN AN EMERGENCY BUT PRIMARILY USED FOR BAGGAGE, IN WHICH CASE THE LOWER RATE WOULD STILL HAVE BEEN APPLICABLE.

UPON THE FACTS APPEARING THERE IS NO LEGAL BASIS FOR ALLOWANCE OF THE CLAIM OR ANY PART THEREOF.