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November 18, 1958


The opinion of the court was delivered by: John E. Miller, Chief Judge.

This suit was filed by the United States of America on May 28, 1958, against the defendant railroad to recover alleged overcharges on shipments by the Commodity Credit Corporation in 1952 and 1953. The United States asserts that it is the real party in interest and claims jurisdiction of this court under Title 15 U.S.C.A. § 714b(c).

On June 25, 1958, the defendant railroad filed its motion to dismiss or, in the alternative, motion for summary judgment on the ground that under Title 49 U.S.C.A. § 16(3)(c), this action is barred. At the time the cause of action arose and at the time this suit was filed, that section provided:

    "(c) For recovery of overcharges action at law
  shall be begun or complaint filed with the commission
  against carriers subject to this chapter within two
  years from the time the cause of action accrues, and
  not after, subject to subdivision (d) of this
  paragraph, except that if claim for the overcharge
  has been presented in writing to the carrier within
  the two-year period of limitation said period shall
  be extended to include six months from the time
  notice in writing is given by the carrier to the
  claimant of disallowance of the claim, or any part or
  parts thereof, specified in the notice."

Section 16(3) has since been amended by Public Law 85-762, 85th Congress, approved August 26, 1958, to change the period of limitation from two years to three years, and explicitly to bring the Government within its terms.

On July 21, 1958, the United States filed its motion for summary judgment denying that the statute of limitations is applicable to it. It appears that there are no questions of fact, and that the overcharges and amounts thereof are by affidavit of both parties admitted. The sole question before the court at this time is whether or not the United States is barred by the statute of limitations contained in the Interstate Commerce Act, 49 U.S.C.A. § 16(3)(c).

Both parties have submitted several briefs including copies of briefs submitted to another district court in which the same question is pending. From all of these briefs it appears that the defendant is relying primarily upon the language of Section 16(3)(c), and further upon the contention that after the expiration of two years no court has jurisdiction to entertain a suit for overcharges under this statute. The Government, on the other hand, insists that a statute of limitations does not apply to the sovereign unless it is made specific in that respect. It also asserts that under the Interstate Commerce Act carriers and shippers must be treated uniformly in all respects. It concludes that since the carrier in a suit against the Government is allowed six years in which to bring suit under the Tucker Act, Title 28 U.S.C.A. § 2401, that the Government must be allowed the same length of time in which to bring suit against the carrier notwithstanding the two-year limitation prescribed by Section 16(3)(c). In addition, both parties call the court's attention to the amendments to Section 16(3) and the legislative history lying behind those amendments. The Government interprets the amendments as showing a legislative recognition that the section, as it existed prior to the amendment, did not apply to the Government. The defendant railroad apparently feels that the new amendment is an attempt to make clear the requirements already laid down by Section 16(3).

On its face the Act bars the Government's claims. The Government, however, contends for two established propositions which lead it to a conclusion that it is not barred. It is correct, as the Government states, that the Interstate Commerce Act is intended to impose its limitations with equality and uniformity on both carrier and shipper. This policy is found not in the express language of the Act itself but is merely implied. It has nevertheless been recognized as a guiding policy which must be followed. Midstate Horticultural Co. v. Pennsylvania R. Co., 1943, 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96. The Government's second proposition is also correct. It asserts that decisions of the Court of Claims and some Circuits have held that in suits against the Government by carriers, the carrier is not bound by the limitation established in the Interstate Commerce Act, but is bound only by the limitation imposed in the Tucker Act, 28 U.S.C.A. § 2401, which is a six-year rather than a two-year limitation. See Eastern Freight Ways v. United States, 2 Cir., 1958, 257 F.2d 703, and cases cited. So far as shown the Supreme Court has never passed upon this question, but, of the courts reaching it, they are agreed that the Tucker Act rather than the Commerce Act limitation controls. From these two premises the Government concludes that the two-year bar in the Commerce Act cannot apply to the Government, because to so apply that limitation would defeat the policy of the Commerce Act to treat carriers and shippers alike.

On its face the force of this argument is compelling, but at its base are unspoken assumptions which render it unacceptable. The Congressional policy of equality implied in the Interstate Commerce Act has been held inapplicable to the extent that carriers' claims against the Government are limited by another statute. The courts so holding have found a "unique position of the Government in its dealings with common carriers" and "cogent reasons" why the policy of equality between shippers and carriers does not apply when carriers claim against the Government. See Eastern Freight Ways v. United States, D.C.S.D.N.Y. 1957, 155 F. Supp. 22, 25, and cases cited. One consideration in such holdings is that a contrary decision would place carriers under a burden not imposed on other claimants in suits against the Government. Cf. Seaboard Air Line R. Co. v. United States, 1949, 83 F. Supp. 1012, 113 Ct.Cl. 437. Thus courts so holding have found a policy of equality of claimants before the Government which stands on higher ground than the policy of the Commerce Act which calls for equality between shippers and carriers. It is not necessary for this court to pass upon the correctness or incorrectness of such decisions. It is necessary to point out, however, that in making the decision that the six-year rather than the two-year statute is applicable in carriers' claims against the Government, those courts were faced with a choice between two statutes in which either choice created an inequality and in which one of two conflicting "policies" — whether real or fancied — was forced to give to the other. Absent legislative language indicating a choice, the decisions necessarily rest upon an expressed or implied weighing of the "policies" to be followed. The Government does not present such a situation here. It does not offer an alternative statute whose policy commands deference to it rather than to the Commerce Act.*fn1 It seeks instead to nullify the express words contained in Sec. 16(3)(c). Its position is bottomed ultimately upon the hidden premise that the policy of the Commerce Act for equality between shippers and carriers is to be weighed against the express language of the Act itself and when so weighed overrides that language. The Government does not offer a countervailing policy of another statute, the words of which command a different result. This is not a case of a conflict of two policies, acceptance of either of which will result in some inequality. Instead this case presents a claim that the policy implied in the Commerce Act is so weighty that the express commands of the Act itself must yield to that implied policy. When this unspoken premise is considered, the logic of the Government's argument falls on its own foundation. Neither the nature of judicial determination nor any of the briefs before the court places the court in a position to determine the weight of the "policy" contended for by the Government. At this point it might be well to recall that the "policy" of a legislative enactment is a guide to interpretation, and in that respect is useful and necessary, but the ethereal realm of policy must not become a fairyland in which courts may substitute their own ideas of what the policy should be for the everyday realities of express language. By attributing to the Congress the court's own concept of fairness or equity, courts may break away from their moorings to the more traditional solutions of legal reasoning to avoid what may seem an unjust result, and when a clear policy is present it may be served in this manner, but it should not be followed to the destruction of actual legislative language. The route the Government takes is somewhat anomalous. It originally contended that carriers must not be allowed six years in which to sue the Government under the Tucker Act because to do so would avoid the policy of uniformity which the Commerce Act commands. As the Government now points out, it has consistently lost those cases, because several courts have found a countervailing policy in the Tucker Act. The Government now says, in effect, that since courts have erred in not giving effect to this policy when the carrier sues the Government, they should follow the same course by refusing to give effect to the express language of the Commerce Act. But the fact that an exception may exist to the policy of equality in cases where the Tucker Act is involved, does not compel the inference proposed by the Government here that what it once asserted as an error must be compounded by ignoring a statute in favor of an implied policy of the same statute in order to return full circle and reach what, in the Government's opinion, is a just result. The net effect of the Government's position is that the court should judicially rewrite Sec. 16(3) to provide not only that it does not apply to transactions with the United States but also to provide positively that the Government shall have six years in which to sue a carrier. Even if this court could nullify the two-year limitation imposed by Sec. 16(3)(c), it could certainly not enact positive law by substituting a six-year judicial limitation for the two-year limitation prescribed by statute.

Section 16(3)(c) provides for a two-year limitation on suits against carriers. In the absence of some positive law casting doubt on this provision, it must prevail over an implied policy. Therefore, the Government is barred by the statute of limitations unless its position as sovereign renders the statute inapplicable in this case.

For the proposition that statutes of limitation do not apply to the sovereign, the Government relies largely upon E.I. Du Pont de Nemours & Co. v. Davis, 1924, 264 U.S. 456, 44 S.Ct. 364, 68 L.Ed. 788; United States v. State of Minnesota, 1926, 270 U.S. 181, 196, 46 S.Ct. 298, 70 L.Ed. 539; Board of Commissioners of Jackson County, Kansas v. United States, 1939, 308 U.S. 343, 351, 60 S.Ct. 285, 84 L.Ed. 313; United States v. Summerlin, 1940, 310 U.S. 414, 415-416, 60 S.Ct. 1019, 84 L.Ed. 1283. In particular the United States asserts that the Du Pont case, supra, is controlling here. That case arose by virtue of federal operation of the railroads. The Director General of Railroads brought suit to recover demurrage charges accrued at Little Rock, Arkansas, during the year 1918. The defendant demurred on the ground that the statute of limitations contained in Section 16(3) barred the action. The wording of that section at that time was substantially similar to the present language involved here. The Court held that the Director General in operating the railroads was not a "carrier" under the act and, therefore, the statute of limitations had no application to him. After rendering the decision on this ground the Court added at page 462 of 264 U.S., at page 366 of 44 S.Ct. the following language, upon which the Government particularly relies:

    "In taking over and operating the railroad systems
  of the country, the United States did so in its
  sovereign capacity, as a war measure, `under a right
  in the nature of eminent domain,' North Carolina R.
  Co. v. Lee, 260 U.S. 16, 43 S.Ct. 2, 67 L.Ed. 104;
  Missouri Pacific R. Co. v. Ault, 256 U.S. 554, 41
  S.Ct. 593, 65 L.Ed. 1087; Northern Pacific Ry. Co. v.
  State of North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63
  L.Ed. 897; In re Tidewater Coal Exchange, 2 Cir., 280
  F. 648, 649; and it may not be held to have waived
  any sovereign right or privilege unless plainly so
  provided. Moneys and other property derived from the
  operation of the carriers during federal control, as
  we have seen, are the property of the United States.
  Sec. 12, 40 Stat. 457. An action by the Director
  General to recover upon a liability arising out of
  such control is an action on behalf of the United
  States in its governmental capacity, Chesapeake &
  Delaware Canal Co. v. United States, 250 U.S. 123,
  126, 39 S.Ct. 407, 63 L.Ed. 889; In re Tidewater Coal
  Exchange, supra; and, therefore, is subject to no
  time limitation, in the absence of congressional
  enactment clearly imposing it. United States v.
  Nashville, C. & St. L. Ry. Co., 118 U.S. 120, 125, 6
  S.Ct. 1006, 30 L.Ed. 81; United States v. Whited &
  Wheless, Ltd., 246 U.S. 552, 561, 38 S.Ct. 367, 62
  L.Ed. 879. Statutes of limitation sought to be
  applied to bar rights of the government, must receive
  a strict construction in favor of the government.
  United States v. Whited & Wheless, Ltd., supra."

It appears that some limitation has been imposed upon the broad language just quoted by United States v. State of California, 1936, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567, where the court concluded that the rule with respect to applicability of limitations to the Government was merely a "canon of construction." At page 186 of 297 U.S., at page 425 of 56 S.Ct. the court said:

    "The presumption is an aid to consistent
  construction of statutes of the enacting sovereign
  when their

  purpose is in doubt, but it does not require that the
  aim of a statute fairly to be inferred be disregarded
  because not explicitly stated."

In addition to the Du Pont case the Government cites as being most nearly in point Illinois Central Railroad v. Rogers, 1958, 102 U.S.App.D.C. 327, 253 F.2d 349, and Shutt v. United States, 5 Cir., 1954, 218 F.2d 10. In the Rogers case the court held that the Government's cause of action arose under the Trading with the Enemy Act, and not under the Interstate Commerce Act. The court therefore concluded that the limitations expressed in Sec. 16(3)(c) did not apply. It then went on to hold, relying upon the Du Pont case, supra, that in any event the statute of limitations in Sec. 16(3)(c) did not apply to the Government. In the Shutt case the ...

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