B-13130, NOVEMBER 1, 1940, 20 COMP. GEN. 237

B-13130, NOVEMBER 1, 1940, 20 COMP. GEN. 237

TRANSPORTATION - LAND-GRANT DEDUCTIONS - EFFECT OF TRANSPORTATION ACT OF 1940 THE TRANSPORTATION ACT OF 1940 DOES NOT CONFER THE BENEFIT OF LAND GRANT RATES UPON ANY TRAFFIC NOT THEREFORE ENTITLED TO THE BENEFIT OF SUCH RATES, AND THE EXCEPTION IN SECTION 321 (A) OF THE ACT FROM THE PROVISION IN SAID SECTION REGARDING THE PAYMENT OF FULL COMMERCIAL RATES ETC., ON GOVERNMENT TRAFFIC DOES NOT AUTHORIZE OR REQUIRE DEDUCTIONS FOR LAND GRANT FROM CHARGES FOR THE TRANSPORTATION OF PROPERTY OF OFFICERS OF THE MILITARY OR NAVAL FORCES TRAVELING ON OFFICIAL DUTY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, NOVEMBER 1, 1940:

I HAVE YOUR LETTER OF OCTOBER 23, 1940, AS FOLLOWS:

UNDER DATE OF SEPTEMBER 18, 1940, THERE WAS SHIPPED FOR SECOND LIEUTENANT EVERETT CANTWELL PLUMMER, AIR CORPS RESERVE, UNDER BILL OF LADING WQ 2429807, FROM DUNCAN FIELD, TEXAS TO DENVER, COLORADO, 9,000 LBS. OF HOUSEHOLD GOODS WHICH SHIPMENT CONTAINED 3,000 LBS. IN EXCESS OF THE OFFICER'S AUTHORIZED WEIGHT ALLOWANCE.

UNDER THE PROVISIONS OF PARAGRAPH 24, ARMY REGULATIONS 30-960, THE FINANCE OFFICER, U.S. ARMY, WASHINGTON, D.C., IS CHARGED WITH THE DUTY OF COMPUTING THE COST OF TRANSPORTING THE EXCESS WEIGHT AND OBTAINING REIMBURSEMENT FROM THE OWNER OF THE PROPERTY OF THE AMOUNT SO COMPUTED.

AS SOME DOUBT EXISTS AS TO THE INTERPRETATION OF SECTION 321, TITLE III, PART II OF THE TRANSPORTATION ACT OF 1940, A DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT LAND-GRANT RATES ARE APPLICABLE ON THE SHIPMENT AND WHETHER THE AMOUNT PAYABLE BY THE OWNER OF THE PROPERTY FOR THE TRANSPORTATION OF HIS EXCESS WEIGHT SHOULD BE COMPUTED ON THE BASIS OF SUCH RATES.

TITLE III, PART II, OF THE TRANSPORTATION ACT OF 1940 PROVIDES IN SECTION 321 AS FOLLOWS:

(A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, BUT SUBJECT TO THE PROVISIONS OF SECTIONS 1 (7) AND 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, THE FULL APPLICABLE COMMERCIAL RATES, FARES, OR CHARGES, SHALL BE PAID FOR TRANSPORTATION BY ANY COMMON CARRIER SUBJECT TO SUCH ACT OF ANY PERSONS OR PROPERTY FOR THE UNITED STATES, OR ON ITS BEHALF, EXCEPT THAT THE FOREGOING PROVISION SHALL NOT APPLY TO THE TRANSPORTATION OF MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE OR TO THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN SUCH MEMBERS ARE TRAVELING ON OFFICIAL DUTY: * * *

(B) IF ANY CARRIER BY RAILROAD FURNISHING SUCH TRANSPORTATION, OR ANY PREDECESSOR IN INTEREST, SHALL HAVE RECEIVED A GRANT OF LANDS FROM THE UNITED STATES TO AID IN THE CONSTRUCTION OF ANY PART OF THE RAILROAD OPERATED BY IT, THE PROVISIONS OF LAW WITH RESPECT TO COMPENSATION FOR SUCH TRANSPORTATION SHALL CONTINUE TO APPLY TO SUCH TRANSPORTATION AS THOUGH SUBSECTION (A) OF THIS SECTION HAD NOT BEEN ENACTED UNTIL SUCH CARRIER SHALL FILE WITH THE SECRETARY OF THE INTERIOR, IN THE FORM AND MANNER PRESCRIBED BY HIM, A RELEASE OF ANY CLAIM IT MAY HAVE AGAINST THE UNITED STATES TO LANDS, INTERESTS IN LANDS, COMPENSATION, OR REIMBURSEMENT ON ACCOUNT OF LANDS OR INTERESTS IN LANDS WHICH HAVE BEEN GRANTED, CLAIMED TO HAVE BEEN GRANTED, OR WHICH IT IS CLAIMED SHOULD HAVE BEEN GRANTED TO SUCH CARRIER OR ANY SUCH PREDECESSOR IN INTEREST UNDER ANY GRANT TO SUCH CARRIER OR SUCH PREDECESSOR IN INTEREST AS AFORESAID. SUCH RELEASE MUST BE FILED WITHIN ONE YEAR FROM THE DATE OF THE ENACTMENT OF THIS ACT. * *

IT IS TO BE NOTED THAT UNDER THE PROVISIONS OF SUBSECTION (B), IF THE CARRIER FURNISHING TRANSPORTATION AS DESCRIBED IN SUBSECTION (A) SHALL HAVE RECEIVED A GRANT OF LANDS FROM THE UNITED STATES TO AID IN THE CONSTRUCTION OF ANY PART OF THE RAILROAD OPERATED BY IT,"THE PROVISIONS OF LAW WITH RESPECT TO COMPENSATION FOR SUCH TRANSPORTATION SHALL CONTINUE TO APPLY TO SUCH TRANSPORTATION AS THOUGH SUBSECTION (A) OF THIS SECTION HAD NOT BEEN ENACTED" UNTIL SUCH CARRIER SHALL FILE WITH THE SECRETARY OF THE INTERIOR A RELEASE OF CLAIMS AS THEREIN SPECIFIED. IN THIS CONNECTION THERE HAS COME TO ATTENTION CIRCULAR NO. 1470 CAPTIONED "1RELEASE OF LAND GRANT RIGHTS BY CERTAIN RAILROAD CARRIERS," ISSUED BY THE COMMISSIONER, GENERAL LAND OFFICE, AND APPROVED OCTOBER 10, 1940, BY THE ACTING SECRETARY OF THE INTERIOR, WHICH PROVIDES IN SECTION 273.67 AS FOLLOWS:

VALIDITY.--- THE FILING OF A RELEASE WILL NOT BE COMPLETE AND EFFECTIVE FOR THE PURPOSE OF ENABLING THE CARRIER TO INVOKE THE BENEFITS OF SECTION 321 (A) OF PART II OF TITLE III OF THE TRANSPORTATION ACT OF 1940 UNTIL IT HAS BEEN FILED IN THE FORM AND MANNER PRESCRIBED BY THESE REGULATIONS, AND UNTIL THE RELEASE HAS BEEN APPROVED BY THE SECRETARY OF THE INTERIOR. * * * AND IN SECTION 273.65---

(B) THE RELEASE MUST BE FILED WITH THE SECRETARY OF THE INTERIOR ON OR BEFORE SEPTEMBER 18, 1941, IN THE FORM PRESCRIBED BY SECTION 273.64. RELEASE MUST BE FILED, REGARDLESS OF WHETHER OR NOT THE CARRIER HAS ANY FURTHER RIGHT OR CLAIM UNDER ITS LAND GRANT, IF IT WISHES TO SECURE THE BENEFITS OF SECTION 321 (A) OF PART II OF TITLE III OF THE TRANSPORTATION ACT OF 1940.

IN VIEW OF THE REQUIREMENTS THUS PRESCRIBED BY STATUTE AND REGULATION FOR THE FILING OF A RELEASE OF CLAIMS AS A CONDITION PRECEDENT TO THE APPLICATION OF THE PROVISIONS OF SUBSECTION (A) OF SECTION 321 OF THE TRANSPORTATION ACT OF 1940 TO TRANSPORTATION FURNISHED BY LAND-GRANT CARRIERS, IT IS APPARENT THAT THE PROVISIONS OF SAID SECTION 321 CANNOT BE VIEWED AS OPERATING TO EFFECT ANY CHANGE IN THE PREVIOUSLY EXISTING STATUTORY REQUIREMENTS RELATIVE TO CARRIER COMPENSATION SO FAR AS SHIPMENTS, ORIGINATING SEPTEMBER 18, 1940, THE DATE OF APPROVAL OF THE ACT, AND INVOLVING TRANSPORTATION BY LAND-GRANT CARRIERS, MAY BE CONCERNED.

IT IS ASSUMED, HOWEVER, INASMUCH AS YOUR SUBMISSION CONCERNS A SHIPMENT OF HOUSEHOLD GOODS OF AN OFFICER OF THE MILITARY FORCES, THAT THE QUESTION YOU SUBMIT WAS PROMPTED BY DOUBT AS TO WHETHER THE PROVISION APPEARING IN SUBSECTION (A) OF SECTION 321 "THAT THE FOREGOING PROVISION (I.E. FOR THE APPLICATION OF FULL APPLICABLE COMMERCIAL RATES, FARES, OR CHARGES FOR THE TRANSPORTATION OF PERSONS OR PROPERTY FOR THE UNITED STATES OR ON ITS BEHALF) SHALL NOT APPLY TO THE TRANSPORTATION OF MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE OR TO THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN SUCH MEMBERS ARE TRAVELING ON OFFICIAL DUTY" HAS THE EFFECT, IN VIEW OF THE CONTEXT IN WHICH IT APPEARS, OF REQUIRING OR AUTHORIZING DEDUCTION FOR LAND GRANT FROM THE CHARGES FOR THE TRANSPORTATION OF SUCH PROPERTY OVER LAND-GRANT RAILROADS. AS THE QUESTION, IN THIS ASPECT OF THE MATTER, IS ONE THAT WILL REQUIRE DETERMINATION IN ANY EVENT, IF AND WHEN THE SPECIFIED RELEASES ARE FILED AND SHIPMENTS THEREAFTER ARE MADE, IT APPEARS PROPERLY FOR CONSIDERATION IN ACCORDANCE WITH THE APPARENT INTENT OF YOUR SUBMISSION, NOTWITHSTANDING THE FACT THAT THE PARTICULAR SHIPMENT HERE CONCERNED WOULD NOT IN ANY EVENT BE EFFECTED.

IT IS TO BE NOTED THAT THE PRINCIPAL PROVISION OF SUBSECTION (A) OF SECTION 321--- NAMELY, THAT , NOTWITHSTANDING ANY OTHER PROVISION OF LAW, BUT SUBJECT TO THE PROVISIONS OF SECTIONS 1 (7) AND 22 OF THE INTERSTATE COMMERCE ACT, AS AMENDED, THE FULL APPLICABLE COMMERCIAL RATES, FARES, OR CHARGES, SHALL BE PAID FOR TRANSPORTATION BY ANY COMMON CARRIER SUBJECT TO SUCH ACT OF ANY PERSONS OR PROPERTY FOR THE UNITED STATES, OR ON ITS BEHALF"--- INSOFAR AS IT AFFORDS A CHANGE OR MODIFICATION IN THE OPERATION OF PREVIOUSLY EXISTING STATUTORY REQUIREMENTS CONCERNING CHARGES FOR THE TRANSPORTATION OF PERSON OR PROPERTY FOR THE UNITED STATES ACCOMPLISHES THAT RESULT PRIMARILY BY VIRTUE OF THE INCLUSION OF THE PHRASE " NOTWITHSTANDING ANY OTHER PROVISION OF LAW," THEREBY REMOVING THE DESIGNATED TRAFFIC FROM THE EFFECT OF ANY OTHER PROVISION OF LAW, EXCEPT SECTIONS 1 (7) AND 22 OF THE INTERSTATE COMMERCE ACT, WHICH WOULD OPERATE TO AUTHORIZE OR REQUIRE PAYMENT OF OTHER THAN THE FULL APPLICABLE COMMERCIAL RATES, FARES, OR CHARGES FOR SUCH TRANSPORTATION. IN OTHER WORDS, WHEREAS FORMERLY--- AND INDEPENDENTLY OF THE PROVISIONS OF SECTION 321 OF THE TRANSPORTATION ACT OF 1940--- THE NORMAL REQUIREMENTS FOR THE PAYMENT OF THE COMMERCIAL, OR TARIFF, CHARGES FOR TRANSPORTATION FOR THE UNITED STATES WERE SUBJECT TO THE OPERATION OF OTHER STATUTORY PROVISIONS SUCH AS THOSE REQUIRING THE PAYMENT OF REDUCED RATES FOR CERTAIN TRANSPORTATION OVER LAND-GRANT RAILROADS, THE SITUATION WAS CHANGED BY SUBSECTION (A) OF THE TRANSPORTATION ACT OF 1940, WHERE APPLICABLE, SO THAT AS TO THE TRAFFIC DESCRIBED THEREIN, WITH THE SPECIFIED EXCEPTIONS, THE REQUIREMENTS FOR PAYMENT OF FULL COMMERCIAL CHARGES WERE NO LONGER TO BE SUBJECT TO THE OPERATION OF SUCH OTHER STATUTORY PROVISIONS, BUT, ON THE CONTRARY, WERE TO HE OBSERVED " NOTWITHSTANDING ANY OTHER PROVISION OF LAW," EXCEPT AS AUTHORIZED IN SECTIONS 1 (7) AND 22 OF THE INTERSTATE COMMERCE ACT.

IN VIEW OF THE CHANGE THUS OBVIOUSLY DESIGNED TO BE ACCOMPLISHED BY THE PRINCIPAL PROVISION OF SUBSECTION (A) IT IS CLEAR THAT THE EFFECT OF THE EXCEPTION OF CERTAIN SPECIFIED TRAFFIC--- MELY,"THE TRANSPORTATION OF MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE" AND "THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN SUCH MEMBERS ARE TRAVELING ON OFFICIAL UTY"--- FROM THE APPLICATION OF SAID PROVISION SIMPLY REMOVES SUCH EXCEPTED TRAFFIC FROM THE OPERATION OF THE REQUIREMENT THAT " NOTWITHSTANDING ANY OTHER PROVISION OF LAW" THE FULL APPLICABLE COMMERCIAL CHARGES ARE TO BE PAID, SUBJECT TO THE PROVISIONS OF SECTION 1 (7) AND 22 OF THE INTERSTATE COMMERCE ACT, AND, IN EFFECT, IS THE EQUIVALENT OF PROVIDING THAT AS TO SUCH EXCEPTED TRAFFIC THE REQUIREMENT FOR THE PAYMENT OF FULL APPLICABLE COMMERCIAL CHARGES IS STILL TO BE SUBJECT TO SUCH OTHER PROVISIONS OF LAW AS MAY AUTHORIZE OR REQUIRE PAYMENT AT OTHER RATES. IN OTHER WORDS, AS TO THE EXCEPTED TRAFFIC, THE MATTER OF CHARGES IS FREED FROM THE RESTRICTION AGAINST THE APPLICATION OF ANY OTHER PROVISIONS OF LAW WHICH MAY AUTHORIZE OR REQUIRE PAYMENT OF OTHER THAN THE FULL APPLICABLE COMMERCIAL CHARGES. THE RESULT IS THE MORE CLEARLY MANIFEST WHEN IT IS REALIZED THAT THE EXCEPTION CLAUSE, REMOVING THE TRAFFIC THEREIN DESIGNATED FROM ALL THAT PRECEDES IT IN SECTION 321, SETS UP NO BASIS OF RATES WITHIN ITSELF FOR APPLICATION TO THE EXCEPTED TRAFFIC AND, THEREFORE, LEAVES SUCH TRAFFIC IN THE SAME STATUS, AS TO THE MATTER OF CHARGES, THAT IT WOULD HAVE OCCUPIED IF SECTION 321 HAD NOT BEEN ENACTED. SECTION 321 CONTAINS NO PROVISION MODIFYING THE OPERATION OF OTHER STATUTES SO LEFT APPLICABLE TO THE EXCEPTED TRAFFIC.

INASMUCH AS THE SHIPMENT INVOLVED IN YOUR SUBMISSION IS COMPOSED OF PROPERTY OF AN OFFICER OF THE MILITARY FORCES TRAVELING ON OFFICIAL DUTY AND INASMUCH AS THE PROPERTY OF SUCH OFFICERS SO TRAVELING IS EXPRESSLY EXCEPTED FROM THE PROVISION OF SECTION 321 EXCLUDING THE APPLICATION OF ANY OTHER PROVISION OF LAW WHICH MAY EFFECT THE MATTER OF CHARGES FOR THE TRANSPORTATION OF SUCH PROPERTY, IT IS NECESSARY TO DETERMINE WHETHER AND TO WHAT EXTENT RELIEF FROM THE REQUIREMENT FOR PAYMENT OF FULL APPLICABLE COMMERCIAL CHARGES FOR SUCH SHIPMENT MAY BE AFFORDED BY OTHER PROVISIONS OF LAW. INSOFAR AS THE OPERATION OF THE LAND-GRANT STATUTES IS CONCERNED IT IS TO BE NOTED THAT THE REDUCTION IN CHARGES OR COMPENSATION REQUIRED BECAUSE OF LAND GRANT IS APPLICABLE TO "THE TRANSPORTATION OF PROPERTY OR TROOPS OF THE UNITED STATES.' SEE IN THIS CONNECTION THE PROVISIONS OF THE ACT OF JUNE 7, 1924, 43 STAT. 477, 486. IT IS WELL SETTLED THAT THE REDUCTION SO REQUIRED DOES NOT APPLY TO PRIVATE PROPERTY OF ARMY OFFICERS TRANSPORTED AT GOVERNMENT EXPENSE. SEE OREGON-WASHINGTON RAILROAD AND NAVIGATION CO. V. UNITED STATES, 255 U.S. 339, AND UNITED STATES V. GALVESTON, HARRISBURG AND SAN ANTONIO RAILWAY CO. 279 U.S. 401. IT IS CLEAR, THEREFORE, THAT INDEPENDENTLY OF THE PROVISIONS OF SECTION 321 OF THE TRANSPORTATION ACT OF 1940, THE SHIPMENT HERE CONCERNED WOULD NOT BE ENTITLED TO THE BENEFITS OF REDUCED RATES BECAUSE OF LAND GRANT. AS TO THE FACT THAT THE TRAFFIC EXCEPTED IN SECTION 321 (A) IS NOT LIMITED TO TRAFFIC OF THE KIND THAT IS PROPERLY SUBJECT TO DEDUCTION FOR LAND GRANT INDEPENDENTLY OF SAID SECTION BUT INSTEAD EMBRACES OTHER AN ADDITIONAL TRAFFIC SUCH AS THAT HERE CONCERNED, IT IS TO BE NOTED, THAT WHATEVER MAY BE THE EFFECT OF THE EXCEPTION AS TO SUCH TRAFFIC, NO PROVISION APPEARS IN THE TRANSPORTATION ACT OF 1940 WHICH IN TERMS, OR BY NECESSARY IMPLICATION, EXTENDS THE APPLICATION OF THE LAND-GRANT STATUTES TO, OR CONFERS THE BENEFITS OF LAND-GRANT RATES UPON, ANY TRAFFIC NOT THERETOFORE ENTITLED TO THE BENEFIT OF SUCH RATES. THAT IT WAS NOT THE LEGISLATIVE INTENT, BY MEANS OF THE EXCEPTION OF THE SPECIFIED TRAFFIC, TO BROADEN THE SCOPE OF EXISTING STATUTORY REQUIREMENTS WITH RESPECT TO CHARGES FOR THE EXCEPTED TRAFFIC BUT INSTEAD WAS MERELY TO CONTINUE, WITH RESPECT TO SUCH TRAFFIC ANY EXISTING LEGAL REQUIREMENTS OR ARRANGEMENTS FOR REDUCED RATES, FINDS CONFIRMATION IN THE FOLLOWING EXCERPT FROM THE CONFERENCE REPORT OF AUGUST 7, 1940, HOUSE REPORT NO. 2832 ON THE BILL (S. 2009) WHICH LATER BECAME THE TRANSPORTATION ACT OF 1940:

LAND GRANT RATES

SECTION 321 OF PART II OF TITLE III OF THE HOUSE AMENDMENT PROVIDED THAT THE FULL APPLICABLE COMMERCIAL RATES, FARES, OR CHARGES SHOULD BE PAID TO ANY COMMON CARRIER SUBJECT TO THE INTERSTATE COMMERCE ACT FOR TRANSPORTATION OF PERSONS OR PROPERTY FOR THE UNITED STATES, OR ON ITS BEHALF, BUT THIS PROVISION WAS CONDITIONED ON THE RELEASE BY THE CARRIER OF CLAIMS AGAINST THE UNITED STATES TO LANDS, INTERESTS IN LANDS, COMPENSATION OR REIMBURSEMENTS ON ACCOUNT OF LANDS, OR INTERESTS IN LANDS WHICH HAD BEEN GRANTED, CLAIMED TO HAVE BEEN GRANTED, OR WHICH IT WAS CLAIMED SHOULD HAVE BEEN GRANTED TO SUCH CARRIER, UNDER ANY GRANT FROM THE UNITED STATES. THE CONFERENCE SUBSTITUTE CHANGES THIS PROVISION BY MAKING AN EXCEPTION FROM THIS REQUIREMENT OF THE PAYMENT OF FULL COMMERCIAL RATES BY THE UNITED STATES IN THE CASE OF THE TRANSPORTATION OF MILITARY OR NAVAL PROPERTY MOVING FOR MILITARY OR NAVAL USE, AND IN THE CASE OF THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN SUCH MEMBERS ARE TRAVELING ON OFFICIAL DUTY. IN THE CASE OF TRANSPORTATION THUS EXCEPTED, EXISTING LEGAL REQUIREMENTS AND ARRANGEMENTS PROVIDING FOR REDUCED RATES WILL CONTINUE TO APPLY.

ANSWERING YOUR INQUIRY, GENERALLY, THEREFORE, NOTWITHSTANDING THE FACT THAT THE PARTICULAR SHIPMENT MENTIONED IN YOUR SUBMISSION APPEARS NOT TO BE AFFECTED, IT MAY BE STATED THAT NO SUFFICIENT BASIS HAS BEEN FOUND FOR VIEWING SECTION 321 OF PART II OF TITLE III OF THE TRANSPORTATION ACT OF 1940 AS AUTHORIZING OR REQUIRING DEDUCTIONS FOR LAND GRANT FROM CHARGES FOR THE TRANSPORTATION OF PROPERTY OF OFFICERS OF THE MILITARY OR NAVAL FORCES TRAVELING ON OFFICIAL DUTY.