Lakewood Engineering Co. v. New York Cent. R. Co.

• Decision Date: 04 November 1924
• Docket Number: 12744.,No. 12743,12743
• Citation: 2 F.2d 121
• Parties: LAKEWOOD ENGINEERING CO. v. NEW YORK CENT. R. CO. (two cases).
• Court: U.S. District Court — Northern District of Ohio

2 F.2d 121 (1924)

LAKEWOOD ENGINEERING CO. v. NEW YORK CENT. R. CO. (two cases).

Nos. 12743, 12744.

District Court, N. D. Ohio, E. D.

November 4, 1924.

Mark A. Copeland, of Cleveland, Ohio, for plaintiff.

West, Lamb & Westenhaver and S. H. West, all of Cleveland, Ohio., for defendant.

WESTENHAVER, District Judge.

The question of law raised by demurrer is the same in both cases. The defendant during the year 1917 and prior to federal control exacted from plaintiff an excessive freight rate on certain shipments. Plaintiff's complaint and application for a reparation order was not filed with the Interstate Commerce Commission until March 8, 1921. Thus it appears that more than two years had elapsed after plaintiff's several causes of action accrued before the filing of said complaint and also before the enactment of the Transportation Act of 1920. It is defendant's contention that section 16, Interstate Commerce Act (Comp. St. ß 8584), requiring reparation claims to be filed with the Interstate Commerce Commission within two years from the time the cause of action accrues, and not after, bars not merely the remedy, but extinguishes the right, and hence that section 206, clause (f), Transportation Act of 1920 (Comp. St. Ann. Supp. 1923, ß 10071ºcc), may not revive the extinguished right by providing that the period of federal control should be excluded in computing periods of limitation in claims for reparation. Supporting the contention that said section 16 not merely bars the remedy, but extinguishes the right are cited Phillips v. Grand Trunk, etc., Ry. Co., 236 U. S. 662, 35 S. Ct. 444, 59 L. Ed. 774; United States ex rel. Cement Co. v. I. C. C., 246 U. S. 638, 38 S. Ct. 408, 62 L. Ed. 914, and a dictum of Judge Rudkin in Wenatchee Produce Co. v. Great Northern Ry. Co. (D. C.) 271 F. 784, 785.

It is not seriously urged that section 206, clause (f), does not or was not intended by Congress to apply to the present situation. Its language is plain, and neither admits nor requires interpretation. It provides in plain and express language that the period of federal control shall not be computed as a part of the periods of limitations in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to federal control. Congress could have had in mind no other period of limitation in reparation claims than the two-year clause of section 16. Hence defendant's contention involves a determination that it was beyond the constitutional power of Congress to apply a retroactive statute of limitations to a reparation claim. To sustain this contention requires a holding that section 206, clause (f),...