ILLINOIS CENTRAL RAILROAD COMPANY v. Rogers

• Decision Date: 27 February 1958
• Docket Number: No. 14127.,14127.
• Citation: 253 F.2d 349
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. William P. ROGERS, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

253 F.2d 349 (1958)

ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. William P. ROGERS, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellee.

No. 14127.

United States Court of Appeals District of Columbia Circuit.

Argued February 10, 1958.

Decided February 27, 1958.

Mr. Howard D. Koontz, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Mr. R. Granville Curry, Washington, D. C., was on the brief, for appellant.

Miss Marbeth A. Miller, Atty., Dept. of Justice, with whom Messrs. George B. Searls, and Irwin A. Seibel, Attys., Dept. of Justice, were on the brief, for appellee.

Before FAHY, BASTIAN and BURGER, Circuit Judges.

BASTIAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court granting appellee's motion for summary judgment in a suit filed by the Attorney General, as successor to the Alien Property Custodian, to enforce a vesting order under the Trading with the Enemy Act. 40 Stat. 411, as amended, 50 U.S. C.A.Appendix, § 1 et seq. 1. The facts are not in dispute and may be briefly summarized as follows:

Mitsubishi Shoji Kaisha, Ltd. (hereinafter referred to as Mitsubishi), a Japanese corporation, in March 1941 made shipments of lubricating oil over the lines of Illinois Central Railroad Company (hereinafter referred to as the Railroad). The Railroad assessed certain charges on these shipments, resulting in an overcharge against Mitsubishi in the amount of $1,827.78. Thereafter, and on May 19, 1941 (revised at appellant's suggestion on November 1, 1941), Mitsubishi filed a claim for the amount of the overcharge. As of the time of the declaration of war with Japan on December 8, 1941, the claim had not been paid although its correctness was not and is not now disputed.

On August 28, 1942, the Alien Property Custodian, predecessor of the Attorney General, issued Vesting Order No. 133 vesting in the Alien Property Custodian, for the benefit of the United States pursuant to the Trading with the Enemy Act, all property of any nature whatsoever owned or controlled by Mitsubishi. The order contained the usual provision that the property so vested was to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States. There was an amendment to the vesting order on August 30, 1951, which is not material to the disposition of this case.

On November 3, 1953, the then Attorney General, as successor to the Alien Property Custodian, made demand on the Railroad for payment. The Railroad, on September 22, 1954, gave notice that the claim was denied on the ground that it was barred by § 16(3) (c) of the Interstate Commerce Act. 49 U.S. C.A. § 16(3) (c).¹ Suit was filed for the said sum of $1,827.78 in the District Court on December 10, 1956, and on June 11, 1957, summary judgment was granted against the Railroad. This appeal followed.

Appellant argues that when war was declared in December 1941 the limitation provided in § 16(3) (c) had run against Mitsubishi for 8½ months; that the rights of Mitsubishi were acquired by the Alien Property Custodian on August 28, 1942; and that, therefore, since the cause of action arose in March 1941 and suit was not filed until December 10, 1956, the claim is barred under § 16(3) (c). The contention is that the Alien Property Custodian acquired no greater right than that possessed by Mitsubishi, that § 16(3) (c) does not except suits by the United States, and that "appellee's claim is barred even though it be found that the statute was tolled from December 8, 1941, to April 29, 1952," (the date on which the Treaty of Peace with Japan terminated wartime emergencies).

When war was declared, and when the vesting order was issued, Mitsubishi had a valid claim against the Railroad. After the vesting order Mitsubishi could not proceed to recover on its claim within the time limited by § 16(3) (c), and no action could have been taken by the Alien Property Custodian until the time of the vesting order. Appellant contends, however, that § 16(3) (c) of the Interstate Commerce Act contains no exceptions and has been construed to include suits by the United States in cases where the United States was the shipper. It may be noticed here that there have been no court decisions directly holding that the United States as shipper is bound by the provisions of § 16(3) (c), although the Interstate Commerce Commission has so held.² It may well be that the United States, having, as the expression has been used, "stooped" to contract with a subject, is bound by the same rules by which other persons so dealing may be bound; but that is not this case. As a matter of fact, it has been held that paragraph (3), added to § 16 of the Interstate Commerce Act, does not apply to an action by the Director General of Railroads to recover demurrage charges accrued to the United States during the period of federal control of railroads. Dupont de Nemours & Co. v. Davis, 1924, 264 U.S. 456, 44 S.Ct. 364, 68 L.Ed. 788, in which the Supreme Court said:

"The action was brought more than three years after the cause of action accrued. The statute relied upon as a bar is section 424, Transportation Act 1920, 41 Stat. 491, 492, * * * being a new paragraph added to section 16 of the Interstate Commerce Act by way of amendment. The pertinent words are: `(3) All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after.\' It is insisted that the United States — or the Director General, representing the United States — is included in the provision as a carrier subject to the act. Our opinion is otherwise." Id., 264 U.S. at pages 459-460, 44 S.Ct. at page 365.

The Court said further:

"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. Section 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,

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