B-134441, MARCH 5, 1958, 37 COMP. GEN. 571

B-134441: Mar 5, 1958

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THE DUTY IMPOSED ON THE OFFICE BY LAW PRECLUDES THE SANCTION OF PUBLIC FUNDS FOR PAYMENT OF FREIGHT CHARGES BASED ON TARIFF RATES COMPARABLE TO THOSE WHICH HAVE BEEN DETERMINED BY THE INTERSTATE COMMERCE COMMISSION TO BE UNJUST AND UNREASONABLE. NOTWITHSTANDING THAT THE CHARGES ACCRUED ON SHIPMENTS WHICH WERE MADE PRIOR TO THE INTERSTATE COMMERCE COMMISSION DETERMINATION. 1958: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF A CLASS 70 RATING OF $2.90 PER 100 POUNDS AT A MINIMUM WEIGHT OF 22. IN OUR AUDIT HERE IT WAS DETERMINED THAT YOU HAD BEEN OVERPAID $223.75 COMPUTED ON THE BASIS OF A CLASS 100 LESS-THAN TRUCKLOAD RATE OF $4.14 PER 100 POUNDS AND ACTUAL WEIGHT OF 30.

B-134441, MARCH 5, 1958, 37 COMP. GEN. 571

TRANSPORTATION - RATES - DETERMINATION AUTHORITY - SHIPMENTS PRIOR TO INTERSTATE COMMERCE COMMISSION DETERMINATION OF UNREASONABLENESS IN THE SETTLEMENT OF CLAIMS FOR TRANSPORTATION CHARGES ON GOVERNMENT SHIPMENTS, THE GENERAL ACCOUNTING OFFICE DOES NOT DETERMINE THE REASONABLENESS OR UNREASONABLENESS OF THE RATES, BUT THE DUTY IMPOSED ON THE OFFICE BY LAW PRECLUDES THE SANCTION OF PUBLIC FUNDS FOR PAYMENT OF FREIGHT CHARGES BASED ON TARIFF RATES COMPARABLE TO THOSE WHICH HAVE BEEN DETERMINED BY THE INTERSTATE COMMERCE COMMISSION TO BE UNJUST AND UNREASONABLE, NOTWITHSTANDING THAT THE CHARGES ACCRUED ON SHIPMENTS WHICH WERE MADE PRIOR TO THE INTERSTATE COMMERCE COMMISSION DETERMINATION.

TO THE VICTOR LYNN LINES, INC., MARCH 5, 1958:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1957, FILE GAO 90, REQUESTING REVIEW OF OUR AUDIT ACTION TAKEN ON YOUR CLAIM, PER BILL NO. A- 138, FOR TRANSPORTATION CHARGES ON A SHIPMENT MOVING UNDER GOVERNMENT BILL OF LADING NO. AF-3961083, DATED SEPTEMBER 24, 1954.

THE RECORD SHOWS THAT THE SHIPMENT INVOLVED CONSISTED OF 75 BOXES AND 75 BUNDLES OF TENTS WITHOUT FIXTURES OR WITH FIXTURES IN THE SAME PACKAGE, WEIGHING 30,390 POUNDS, MOVING FROM THE MALLORY AIR FORCE DEPOT, MEMPHIS, TENNESSEE, TO THE DOVER AIR FORCE BASE, DELAWARE, VIA COOK--- MASON DIXON- -- VICTOR LYNN LINES. FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID CHARGES COMPUTED ON THE BASIS OF A CLASS 70 RATING OF $2.90 PER 100 POUNDS AT A MINIMUM WEIGHT OF 22,000 POUNDS EACH FOR TWO TRUCKS AND AN OVERFLOW WEIGHT OF 7,100 POUNDS IN A THIRD VEHICLE. IN OUR AUDIT HERE IT WAS DETERMINED THAT YOU HAD BEEN OVERPAID $223.75 COMPUTED ON THE BASIS OF A CLASS 100 LESS-THAN TRUCKLOAD RATE OF $4.14 PER 100 POUNDS AND ACTUAL WEIGHT OF 30,390 POUNDS BASED UPON FINDINGS OF THE INTERSTATE COMMERCE COMMISSION THAT CHARGES FOR A FULLY LOADED VEHICLE UNDER THE MINIMUM CHARGE RULE SHOULD NOT EXCEED CHARGES ON THE SAME LOT OF FREIGHT COMPUTED ON THE BASIS OF LESS-THAN-TRUCKLOAD RATES AT THE ACTUAL WEIGHT OF THE SHIPMENT. THE COMMISSION'S DECISIONS IN ROYAL MANUFACTURING COMPANY, INC. V. HUBER AND HUBER MOTOR EXPRESS, INC., ET AL., 66 M.C.C. 237, AND HORSMAN DOLLS, INC. V. RISS AND COMPANY, INC., 66 M.C.C. 697, WERE CITED AS AUTHORITY FOR OUR ACTION. THE AMOUNT OF SUCH OVERPAYMENT WAS COLLECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE YOU.

IN YOUR REQUEST FOR REVIEW YOU DO NOT QUESTION THE FINDINGS OF THE COMMISSION IN THE CITED CASES BUT YOU STATE THAT UNDER PART 2 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 301 ET SEQ., IF THE COMMISSION MAKES A DECISION THAT A RATE IS UNJUST OR UNREASONABLE,"IT JUST BARS THE APPLICATION OF THAT RATE FOR THE FUTURE AND DOES NOT PERMIT OVERCHARGES ON SHIPMENTS THAT HAVE MOVED IN THE PAST.' YOU TAKE THE POSITION THAT WE HAVE NO AUTHORITY TO APPLY ANY SUCH FINDINGS OF THE COMMISSION RETROACTIVELY TO THE SHIPMENT HERE INVOLVED OR TO SIMILAR SHIPMENTS.

UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71," ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.' IN THE PERFORMANCE OF OUR STATUTORY DUTIES IN A MATTER SUCH AS HERE PRESENTED, DUE CONSIDERATION MUST BE GIVEN TO THE TERMS AND PROVISIONS OF THE INTERSTATE COMMERCE ACT, AS AMENDED, AND TO PERTINENT DECISIONS OF THE INTERSTATE COMMERCE COMMISSION AND THE COURTS. COMMON CARRIERS BY MOTOR VEHICLE, ENGAGED IN INTERSTATE AND FOREIGN COMMERCE, ARE REQUIRED TO "ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE RATES, CHARGES, AND CLASSIFICATIONS, AND JUST AND REASONABLE REGULATIONS AND PRACTICES RELATING THERETO" BY THE PROVISIONS OF SECTION 216 (B) OF PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 316 (B), AND ALL CHARGES MADE FOR SERVICES RENDERED "SHALL BE JUST AND REASONABLE, AND EVERY UNJUST AND UNREASONABLE CHARGE FOR SUCH SERVICE OR ANY PART THEREOF, IS PROHIBITED AND DECLARED TO BE UNLAWFUL.' 49 U.S.C. 316 (D).

IT SHOULD BE NOTED THAT THE COMMISSION HAS EXERCISED JURISDICTION ON NUMEROUS OCCASIONS TO DETERMINE THE REASONABLENESS OF INTERSTATE MOTOR CARRIER RATES ON PAST SHIPMENTS. SEE, FOR EXAMPLE, W. A. BARROWS PORCELAIN ENAMEL CO. V. CUSHMAN M. DELIVERY, 11 M.C.C. 365; KOPPERS CO. V. LANGER TRANSPORT CORP., 12 M.C.C. 741; DIXIE MERCERIZING CO. V. ET AND WNC MOTOR TRANSP. CO., 21 M.C.C. 491; HILL-CLARKE MACHINERY CO. V. WEBBER CARTAGE LINE, INC., 26 M.C.C. 144; PATTEN BLINN LBR. CO. V. SOUTHERN ARIZONA FREIGHT LINES, 31 M.C.C. 716; KINGAN AND CO. V. OLSON TRANSP. CO., 32 M.C.C. 10; HAUSMAN STEEL CO. V. SEABOARD FREIGHT LINES, INC., 32 M.C.C. 31, AND DAVIDSON TRANSFER AND STORAGE CO. V. UNITED STATES, I.C.C. DOCKET NO. M.C.C. 1849, DECIDED OCTOBER 14, 1957.

IN THE ROYAL MANUFACTURING COMPANY AND HORSMAN DOLLS CASES, CITED ABOVE AS AUTHORITY FOR OUR PRESENT ACTION, THE INTERSTATE COMMERCE COMMISSION FOUND THAT RATES CHARGED UNDER A MINIMUM CHARGE RULE SUCH AS IS SOUGHT TO BE APPLIED IN THIS INSTANCE WERE AND ARE UNJUST AND UNREASONABLE TO THE EXTENT THAT THEY EXCEED THE LESS-THAN-TRUCKLOAD RATE COMPUTED AT THE ACTUAL WEIGHT OF THE SHIPMENT. SEE, ALSO, OVERFLOW AND MINIMUM CHARGE RULE, SUMMIT FAST FREIGHT, INC., 61 M.C.C. 163. OUR OFFICE DOES NOT MAKE DETERMINATIONS AS TO THE REASONABLENESS OR UNREASONABLENESS OF TARIFF RATES. WE DO, HOWEVER, DETERMINE WHETHER THE FACTS AND CIRCUMSTANCES IN CONNECTION WITH A GIVEN CLAIM ARE COMPARABLE TO THOSE INVOLVED IN CASES IN WHICH CHARGES BASED ON SIMILAR TARIFF PROVISIONS HAVE BEEN DECLARED BY THE INTERSTATE COMMERCE COMMISSION TO BE UNREASONABLE. TO SANCTION THE AVAILABILITY OF PUBLIC FUNDS FOR PAYMENT OF CHARGES CLAIMED IN SUCH SITUATIONS WOULD APPEAR TO VIOLATE THE DUTY IMPOSED BY LAW UPON US TO CONSIDER, IN THE SETTLEMENT OF CLAIMS, SUBSTANTIVE DEFENSES IN LAW. THIS SITUATION THE GENERAL ACCOUNTING OFFICE, IN THE PERFORMANCE OF ITS AUTHORIZED DUTIES TO SETTLE AND ADJUST GOVERNMENT ACCOUNTS, WOULD NOT BE JUSTIFIED IN HOLDING PUBLIC FUNDS TO BE AVAILABLE FOR THE PAYMENT OF ANY AMOUNT IN EXCESS OF THE REASONABLE CHARGES. IN THIS CONNECTION, SEE UNITED STATES V. WESTERN PACIFIC R. CO., 352 U.S. 59, AND UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD R. CO., 355 U.S. 253.

ACCORDINGLY, THE AUDIT ACTION TAKEN IN THIS MATTER IS NOT IN ERROR AND THE REVISION YOU SEEK CANNOT BE ACCOMPLISHED HERE.