#### CHARLES E. SCHAFF, RECEIVER OF THE MISSOURI, KANSAS & TEXAS RAILWAY CO. OF TEXAS v. THE UNITED STATES

[No. A-241.

Decided March 3, 1924]

*On the Proofs*

*Hiatutes of limitation.*— Causes of action accruing prior to the passage *of the*transportation *act of*February 28, 1920, 41 Staf. 492, are not barred by section 424 of that act unless suit is brought more than three years after February 28, 1920, and suits brought prior to that date are controlled by section 158 of the Judicial Code.

*The Reporter1 s*statement of the case:

*Mr. Lawrence H. Calce*for the plaintiff. *Britton & Cray*were on the briefs.

*Mr. Louis R.*MehUnger, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

*319The following are the facts of the case as found by the court:

I. The plaintiff is the receiver of the property of The Missouri, Kansas & Texas Kailway Company of Texas, a corporation, and now operates the system of railways formerly and for a long time operated by the said corporation in the State of Texas. As such receiver the plaintiff is a common carrier for hire of freight and passengers, and has established tariffs for such transportation, which are duly published and filed with the Interstate Commerce Commission as required by law.

II. At the time of the transportation hereinafter mentioned there were in force on the -lines of the plaintiff and other railroad carriers with which it connected, being the carriers who furnished the transportation hereinafter mentioned, certain special baggage car tariffs covering the territory through which the said troops and military impedimenta were moved, which stated in substance and effect the terms and conditions upon which associated travelers traveling on one ticket might become entitled to a baggage car free for the transportation of certain of their effects on the basis generally of one car free to each 25 passengers.

III. During 1916 and 1917 there were in effect certain agreements between the United States and the railroad carriers, including the plaintiff, on the subject of fares and charges for the transportation of military traffic. One of these agreements was entitled Western Military Arrangement and was in effect from July 1, 1916, to December 31, 1916. Another was Inter-territorial Military Arrangement, dated December 28, 1916, which was in effect from January 1, 1917, throughout the year 1917. The Western Military .Arrangement contained the following:

“ One hundred and fifty (150) pounds of personal effects of officers and men properly checkable as baggage will be transported without charge for one person, but this does not include company, battalion, regimental, or Government property. Personal baggage in excess of the weight stated, when provision for transportation of same is specifically made in D. S. Army, U. S. Navy, and U. S. Marine *320Corps, transportation request will be charged for at the excess baggage rates less lawful land-grant deductions.

“When a company, battalion, regimental or Government property is moved on passenger trains, it shall be subject to adjustment for each movement.”

The said interterritorial military arrangement provided:

“ BAGGAGE

“(1) One hundred and fifty (150) pounds of personal effects, properly checkable as baggage, under the tariff of the initial carrier, will be transported without charge for each person. Personal baggage in excess of the free allowance stated when provision for the transportation of the excess baggage is specially made in United States Army, Navy, or Marine Corps transportation requests and is paid for by the United States Government, will be charged for at the regular excess-baggage rate, based upon the net individual fare. When provision is not made in the transportation request for the transportation of excess baggage, collection will be made from the traveler at the regular commercial rate for weight in excess of the free allowance stated. Excess-baggage charges will not be subject to allowances applicable in connection with the fares for tickets under this arrangement. Baggage regulations in other resjaects than above will be in accordance with the tariff of the initial carrier checking the baggage in each case.

*“*(2) Company, battalion, regimental, or Government property is not included in the above.”

IV. During 1916 and 1917 the plaintiff carried for the United States Government, fipon bills of lading issued by officers of the United States Army freight shipments of Government property described in the bills of lading variously as troop property, organization property and impedimenta, miscellaneous ordnance property, company property, ordnance stores, quartermaster property and supplies, canteen property, battery property, horses and mules, guns, caissons, limbers, arms and ammunition, wagons, household goods, personal effects, etc.

V. For the service performed as described in Finding IV, the plaintiff as the last carrier submitted its bills R-652, R-1021, R-1022, R-1036, R-1037, R-1123, R-1128, R-1247, R-2111, RF-1733, and RF-1780, aggregating $72,091.28 *321under certain provisions of tariffs filed with the Interstate Commerce Commission fixing the rates on the transportation of military impedimenta of the United States without land-grant deductions. The proper charge for said transportation was the sum of $56,417.13, a reduction of $15,674.15,' arrived at by making proper changes in classifications, rates, weights, and land-grant deductions. From this balance of $56,417.13 there were later deductions of $23,933.19 made by the accounting officers because of a ruling of the Comptroller of the Treasury that the Government was entitled to have one baggage car free of cost for every 25 men in a troop movement for the transportation of its military impedimenta. These later deductions by the accounting officers Avere erroneous.

VI. Included in this sum of $23,933.19, which had been deducted as aforesaid, were two items aggregating $1,986.50, described in this finding. These two items having been paid by the disbursing officer to plaintiff upon its bills as rendered, R-1036 and R-1037, the amount of $791.03 and $1,195.47, respectively, making said total of $1,986.50, were later deducted by the auditor from the balances due from the United States to the Railroad Administration operating-plaintiff’s lines. These deductions were made because of supposed overpayments to plaintiff on these two items. There is no evidence shoAving that the amount of these two deductions has been refunded by plaintiff to the Railroad Administration or that the plaintiff has in anywise accounted therefor to the Railroad Administration. Deducting this amount of $1,986.50 from the deductions mentioned in Finding V leaves a balance of $21,946.69.

CaMpbell, *Chief*Justice,

delivered the opinion of the court:

The only defense attempted to be interposed in this case is the statute of limitations of three years contained in the transportation act of February 28.1920, 41 Stat. 492. Unless that limitation applies the plaintiff is clearly entitled to a judgment. We have indicated, in former opinions that the statute does apply to suits by carriers against the Govern*322ment, but it has not been necessary in these former cases to apply the statute. Expressions in some of these cases may be responsible for the contention here made that the plaintiff’s cause of action accrued more than three years before suit was brought. But the rule is well settled, and is stated in *Sohn*v. *Waterson, 17*Wall. 596. The statute of limitations prescribed by the transportation act of 1920 applies to actions brought against the Government by a carrier to recover its charges, but it does not defeat causes of action which arose before its passage if suit be brought within three years after the passage of the act and within six years from the accrual of tire right of action. In other words, the general statute of limitations of six years applicable to suits in the Court of Claims, being jurisdictional, applies to all actions unless waived by statutory enactment relative to •the particular case, and the limitation of three years prescribed by the transportation act may apply as above stated. But when suit is brought on a cause of action arising before the late statute, and this statute is alone relied upon, the limitation it prescribes begins to run from the date of the enactment of the statute. *Sohn*v. *Waterson, supra.*The plaintiff is entitled to a judgment in the sum of $21,946.69. And it is so ordered.

Graham, *-Judge;*Hay, *Judge;*DowNey, *Judge;*and Booth, Judge, concur.