B-128878, DEC. 3, 1956

B-128878, DEC. 3, 1956

TO MR. JAMES E. RYAN:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 5, 1956, RELATIVE TO SEVERAL OVERPAYMENTS STATED AGAINST UNION FREIGHTWAYS, OMAHA, NEBRASKA. AS ILLUSTRATIVE OF ALL OF THE BILLS ON WHICH OVERPAYMENTS WERE ISSUED, YOU CITED UNION FREIGHTWAYS BILL NO. 3441.

BILL NO. 3441 WAS ISSUED TO COLLECT CHARGES FOR TRANSPORTING 21 TRUCKLOAD SHIPMENTS OF "ROCKET AMMUNITION WITH EXPLOSIVE PROJECTILES (ROCKET, HE.AT. 3.5" M28A2 S9JNA)" FROM THE CORNHUSKER ORDNANCE PLANT, COPLANT, NEBRASKA, TO THE NAVAL AMMUNITION DEPOT, HASTINGS, NEBRASKA, DURING MARCH 1953. EACH OF THE 21 BILLS OF LADING WAS ENDORSED "UNION FREIGHTWAYS TENDER 84., " AND "THIS GBL ISSUED TO COVER THE * * * (71ST THROUGH 91ST) PARTIAL OF A COMPLETE SHIPMENT COMPRISING OF APPROX. 3,713,352 POUNDS THE FIRST PART THEREOF COVERED BY GBL WY 1361360.' YOUR CHARGES OF $3,228.33, BASED UPON A RATE OF 46 CENTS PER 100 POUNDS, WERE PAID BY GOVERNMENT DISBURSING OFFICER J.M. WEIDNER ON VOUCHER 25387 OF HIS JULY 1953 ACCOUNT. THEREAFTER, IN THE AUDIT HERE, IT WAS DETERMINED THAT THE PROPER CHARGES WERE $3,158.19, BASED UPON THE RATE OF 45 CENTS PER 100 POUNDS OFFERED IN UNION FREIGHTWAYS TENDER NO. 84 AND SUPPLEMENT 1 THERETO. THE CARRIER, BEING REQUESTED TO REFUND THE RESULTING OVERPAYMENT OF $70.14, MADE SEVERAL PROTESTS TO THE AUDIT. YOU BASE YOUR OBJECTIONS UPON THE FACT THAT THIS WAS INTRASTATE SERVICE, SUBJECT TO THE LAWS OF NEBRASKA PROHIBITING UNJUST DISCRIMINATION IN TRANSPORTATION CHARGES AND PERMITTING REDUCED RATES TO SPECIFIED PARTIES, NOT INCLUDING THE UNITED STATES. YOU URGE THAT THE APPLICABLE RATE WAS 46 CENTS PER 100 POUNDS, PRESCRIBED BY THE NEBRASKA RAILWAY COMMISSION.

ON MAY 10, 1952, THE UNION TRANSFER COMPANY, DOING BUSINESS AS UNION FREIGHTWAYS, ISSUED TENDER NO. 84, EFFECTIVE MAY 10, 1952, WHICH OFFERED TO THE DEPARTMENTS OF THE ARMY AND NAVY, PURSUANT TO "SECTION 22 OF THE INTERSTATE COMMERCE ACT, OR OTHER APPROPRIATE STATUTORY AUTHORITY," A RATE OF 46 CENTS PER 100 POUNDS ON "AMMUNITION, AND/OR EXPLOSIVES, AND/OR FIREWORKS, NOI," SHIPPED FROM THE CORNHUSKER ORDNANCE PLANT, GRAND ISLAND, NEBRASKA, TO THE U.S. NAVAL AMMUNITION DEPOT, HASTINGS, NEBRASKA. SUPPLEMENT NO. 1, ISSUED MARCH 31, 1953, RETROACTIVE TO MARCH 3, 1953, THE RATE WAS REDUCED TO 45 CENTS PER 100 POUNDS, WHICH WAS USED IN THE AUDIT HERE.

SECTION 75-501, REVISED STATUTES OF NEBRASKA, 1943, DEFINES AND PROHIBITS UNJUST DISCRIMINATION IN RATES AND CHARGES; SECTION 75-508 RELATES TO THE GRANTING OF REDUCED RATES AND CHARGES, DESCRIBING CERTAIN CONDITIONS UNDER WHICH THEY MAY BE GRANTED AND NAMING CERTAIN PARTIES TO WHOM THEY MAY BE GRANTED. AT THE TIME THESE SHIPMENTS MOVED, THE UNITED STATES WAS NOT SPECIFICALLY NAMED IN SECTION 75 508. HOWEVER, IN SOMEWHAT SIMILAR STATUTORY SITUATIONS COURTS HAVE HELD THAT THERE WAS NO UNJUST OR UNLAWFUL DISCRIMINATION IN GRANTING REDUCED RATES TO THE UNITED STATES. THE STATUTORY LISTING OF POTENTIAL RECIPIENTS OF REDUCED RATES DOES NOT APPEAR TO BE EXCLUSIVE, AND THE DISCRIMINATION IN FAVOR OF THE UNITED STATES IS IN THE INTEREST OF THE PUBLIC AND THUS NOT UNJUST OR UNLAWFUL. KANSAS CITY SOUTHERN RAILWAY COMPANY V. LOUISIANA PUBLIC SERVICE COMMISSION, 73 SO. 2D 188. SEE ALSO, IN THIS CONNECTION, RAILROAD COMMISSION OF TEXAS ET AL. V. UNITED STATES ET AL., 290 S.W. 2D 699, IN WHICH A REHEARING WAS DENIED, AND UNITED STATES V. PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, 141 F.SUPP. 168.

IN THE LIGHT OF THESE DECISIONS, WHICH REFLECT THE WEIGHT OF AUTHORITY ON THIS SUBJECT, THE 1955 AMENDMENTS TO SECTION 75-508 SEEM TO CLARIFY PREVIOUSLY EXISTING LAW BY SPELLING OUT ITS APPLICATION TO THE UNITED STATES, AND BY PROTECTING CARRIERS FROM LIABILITY FOR REDUCED-RATE TRANSPORTATION FURNISHED THE UNITED STATES. ACCORDINGLY, THE CHARGES COLLECTED ON THE CARRIER'S BILL NO. 3441 SHOULD NOT HAVE EXCEEDED THOSE APPLICABLE UNDER UNION FREIGHTWAYS TENDER NO. 84. THE OVERPAYMENTS OF $70.14 ON THIS BILL, AND SIMILAR OVERPAYMENTS, SHOULD BE REFUNDED PROMPTLY.