Acheson Graphite Co. v. Mellon

Citation21 F.2d 562
PartiesACHESON GRAPHITE CO. v. MELLON, Director General of Railroads, et al.
Decision Date22 June 1927
CourtU.S. District Court — Western District of New York

Cohn, Franchot, Runals & Robillard, of Niagara Falls, N. Y. (Basil Robillard and Paul P. Cohen, both of Niagara Falls, N. Y., of counsel), for plaintiff.

Sidney F. Andrews, of Washington, D. C., Rann, Vaughan, Brown & Sturtevant, of Buffalo, N. Y., and Alex M. Bull, of Washington, D. C., for defendant Andrew W. Mellon, Director General of Railroads, as Agent.

Locke, Babcock, Hollister & Brown, of Buffalo, N. Y., for defendants New York, C. & St. L. R. Co. and Lake Erie & W. R. Co.

HAZEL, District Judge.

This action was brought against the Director General of Railroads, as Agent, and defendants carriers, to recover $6,782.75, with interest from September 1, 1925, as reparation damages arising out of overcharges of transportation rates on shipments of coke from Indianapolis, Ind., delivered to plaintiff at its plant at Harriet, N. Y., during federal operation and control of railroads. By sections 14-16 of the Interstate Commerce Act (49 USCA §§ 13-15 Comp. St. §§ 8582-8584) a remedy is provided to shippers against the United States, represented by the Director General, for excessive rates exacted for shipments during the time the railroads were operated by the government, and, in conformity therewith, the Interstate Commerce Commission made an order, following the hearing, on issues presented, directing payment of the overcharged amount, which plaintiff now seeks to enforce under section 16 (a) because of failure to comply therewith.

In behalf of the Director General of Railroads, as Agent, a motion for judgment is urged on the grounds (a) that this action was not begun within the time limited by section 206 of the Transportation Act (49 U SCA § 74 Comp. St. § 10071¼cc) viz. within one year after the award was made; and (b) that a cause of action against defendant Andrew W. Mellon, as Agent of the President, under section 206 of the Transportation Act, was not alleged.

1. The Transportation Act (section 206 a) provides, in terms, that an action such as this "may be brought within one year after the date of the Commission's" award. The order of award in question is dated September 18, 1925, and James C. Davis, Director General of Railroads, as Agent, was directed to pay the specified amount on or before November 5, 1925. Afterwards Andrew W. Mellon was similarly designated by the President to succeed Mr. Davis, and the action was brought against him.

The question first considered is whether the time to enforce the order by action, ran from September 18, 1925, when it was made, or from November 5th, the date in the order on or before which the amount was directed to be paid. This precise question was decided adversely to the government in Standard Oil Co. of California v. Davis (D. C.) 6 F. (2d) 236, where it was held that the time in which an action like this must be brought is computable from the time the money is to be paid, and not from the date of the order. Since this decision is the only reported decision dealing with the statute of limitations, I am unable to comprehend sufficient reason for not following it.

The government asserts the decision is based on fallacious premise, but to me it is logical and cogently persuasive.

Judge Partridge, in the above case, said:

"It is, of course, fundamental in all the law pertaining to statutes of limitations, that they are to be computed from the time when the party could have brought his suit. Indeed, even after the time has commenced to run, it may be suspended — `tolled' — by disability to sue. Clearly, under the act, here, the plaintiff could not have brought its suit until after the `effective date' of the order. Moreover, it might readily happen that for one reason or other the Commission would postpone the payment until a year after its order. It is thus seen that the construction contended for by plaintiff is more reasonable, and at the same time in consonance with settled priciples relating to statutes of limitations. But it cannot be said that `the date of the order,' under a strict construction, necessarily means the date of its promulgation. The language is equally susceptible of the meaning `date fixed by the order.' That this is the reasonable and time-honored interpretation is made clear by the language of the Supreme Court in Mutual Life Insurance Co. of New York v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235 31 A. L. R. 102. * * *

I accept this interpretation and construction of the statute. It is inconceivable to me that Congress intended that the time to bring an action should run, or begin to run, before the arrival of the time to enforce the remedy, or before the action is ripe.

The argument is based upon the asserted intention of Congress to fix some other date for bringing suit than the accrual of the cause of action, as might, perhaps, be inferred from limitations in other instances under section 206(a) of the Transportation Act, together with the practice of the Commission of making its report of findings before its order is issued, but I nevertheless think that the amendment (section 161) was intended to fix an effective date, as Judge Partridge says, from which the time for bringing suit runs, viz. the date when the award was to be paid, as distinguished from the date of the order. Some indefiniteness exists, it is perhaps true, as to the exact meaning of the order, as to time of enforcing the remedy, but any uncertainty or doubt should, in my opinion, be resolved in favor of plaintiff in whose benefit the order issued. See Mutual Life Ins. Co. of New York v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102.

2. Passing to the point that the summons was not delivered to the marshal for service upon the Director General as Agent until November 6, 1926, and was not served within the one year before November 5, 1925, the record shows that originally a summons and petition was filed in the clerk's office on September 14, 1926, and summons delivered by the clerk to the marshal for service on defendants having their principal offices in this...

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3 cases
  • JOINT COUNCIL, ETC. v. Delaware, L. & WR Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 15, 1946
    ...claim arose) disposes of the case, I have not considered nor do I join in the earlier part. 1 Defendant relies upon Acheson Graphite Co. v. Mellon, D.C.W.D.N.Y., 21 F.2d 562, and Chesapeake & O. R. Co. v. Walton, 4 Cir., 99 F.2d 270; but these decisions actually sustain delayed actions to e......
  • Missouri Pacific Railroad Company v. Austin
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 28, 1961
    ...& O. Ry. Co. v. Walton, 4 Cir., 1938, 99 F.2d 270; Standard Oil Co. of Cal. v. Davis, D.C.N.D.Cal.1925, 6 F.2d 236; Acheson Graphite Co. v. Mellon, D.C.N.Y.1927, 21 F.2d 562. On the issue of Austin's 50% interest, the Railroad has not met the burden of F.R.Civ.P. 52(a), 28 U.S.C.A., of demo......
  • Chesapeake & O. Ry. Co. v. Walton
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 10, 1938
    ...in the only opinions interpreting the statute which have been found. Standard Oil Co. v. Davis, D. C., 6 F.2d 236; Acheson Graphite Co. v. Mellon, D.C., 21 F.2d 562. We are told that the opposite conclusion was reached, but no opinions were filed, in two cases in the United States District ......

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