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but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress, he shall submit the same to the Congress by a special report containing the material facts and his recommendation thereon." Under the provisions of these sections claims filed by the carriers within 10 years from date of accrual have been and are being considered on their merits in the General Accounting Office. To require that an overtaxed auditing force shall give consideration to the settlement and disposition of carriers' claims dating back more than 2 years from time of presentation to time of accrual would militate pro tanto against effecting recoveries of overcharges from carriers if such recoveries be barred from collection unless effected within a shorter period.
(6) Title 28, U. S. C. 262 (Judicial Code, sec. 156) :
"Every claim against the United States cognizable by the Court of Claims shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives, as provided by law, within six years after the claim first accrues.
* * *""
Under this provision the Court of Claims held, in the case of Southern Pacific Company v. The United States (62 C. Cls. 391), that claims by carriers presented in petitions filed within 6 years after the claims accrued were not barred from consideration by that court and that, with respect to claims by carriers growing out of deductions made by the accounting or disbursing officers in the payment of carriers' bills in order to effect recovery of audited overcharges collected by the carriers on earlier bills, the carriers' cause of action does not arise until the deductions are made. The court declined to apply the limitations-imposed by the Interstate Commerce Act, as amended, against suits by carriers for recovery of undercharges to suits by the carriers in the Court of Claims. The construction so given these statutes in 1926 has been applied continuously since with respect to suits in that court. Previously the court had given effect to the limitations imposed by paragraph (3) of section 16 of the Interstate Commerce Act in the disposition of certain cases pending before it and in United States v. St. Louis, San Francisco & Texas Railway Company (270 U. S. 1) (which involved traffic handled before the effective date of the limitation in question, imposed by a 1920 amendment to the Interstate Commerce Act, and therefore held not within the scope of the limitations), the Supreme Court stated:
"As we hold that paragraph 3 does not apply to any cause of action existing at the date of the passage of Transportation Act, 1920, we have no occasion to consider whether, under any circumstances, it is applicable to claims against the Government brought in the Court of Claims pursuant to § 145, Judicial Code. See Western Pacific R. R. Co. v. United States, 59 C. Cls. 67, 81."
The case in which this comment was made was decided in January 1926, and thereafter, in June 1926, the Court of Claims reached the conclusion, as indicated hereinabove, that the limitations imposed by the Interstate Commerce Act had no application to Government transactions.
The matter does not appear to have been the subject of further specific comment, though certain cases in which the 3-year limitation, if applicable, would have barred consideration of the merits have been reviewed by the Supreme Court. Notably in that connection is the case of the Southern Railway Company v. United States (322 U. S. 72), involving shipments which moved during the period 1934-38. The petition was filed in July 1940. The case was considered on its merits by both courts, the Court of Claims having found in its special findings of fact (100 C. Cls. 175), "All the transportation herein involved was completed within the statutory time for bringing suit and none of the items are barred by the statute of limitations," and, more specifically, "In the summer months of the year 1934, the Federal Surplus Relief Corporation, as consignor and duly authorized agent of the United States, shipped over plaintiff's lines and its connections 147 shipments of livestock which are listed in Exhibit No. 4 to the petition, * * *"" Also the Supreme Court made comment to the effect that the suit involved 374 shipments of Government property over petitioner's lines and its connections "made between 1934 and 1938." While it may have been that the question of the operation of the limitations imposed in the InterState Commerce Act as a bar was not specifically raised, it is nevertheless true
that the case as handled and considered was consistent with the construction given the Interstate Commerce Act by the Court of Claims in 1926 as having no application to Government transactions.
Moreover, it has been necessary for the General Accounting Office to prepare reports and computations required by the Department of Justice in the preparation of stipulations of fact and in the defense of numerous suits, some of which involve hundreds of shipments. Obviously, time consumed by personnel in the preparation of reports of fact on shipments which moved more than 2 years prior to the filing of suit operates by just that much to curtail the force available for the audit of accounts as to which the Government would be barred from recovery within 2 years if the present bill is made applicable to Government transactions.
II. Elapsed time before payment under the former preaudit practice: With respect to the request for a showing as to the time that elapsed prior to payment of carriers' bills under the former preaudit arrangement, the records show that under a regulation issued by a former Comptroller General November 25, 1922 (2 Comp. Gen. 832), the system contemplated that:
"Bills must be stamped with the date of receipt by the particular administrative office, and the administrative examination shall be completed and the bills with supporting papers forwarded not later than ten days after their actual receipt, the intent being that there shall be no accumulation of carriers' bills in the administrative office but that they shall be forwarded immediately upon completion of the administrative examination, so that wherever possible there shall be daily forwardings to the General Accounting Office."
The question of the time consumed in the audit under the preaudit procedure so established was considered at length in a letter of former Acting Comptroller General R. N. Elliott, A-90400, December 13, 1937, copy enclosed. As a result of increased shipping incident to the emergency and relief programs inaugurated by the Government during the 1930's somewhat more than usual delay ensued in making payment of carriers' bills. Nevertheless, as shown in the letter of December 13, 1937, the actual fact is that payments then being made under the preaudit procedure were accomplished after the audit but equally as quickly as were the War-Navy payments which were being paid by the departments prior to any General Accounting Office audit.
The preaudit system was rendered finally inoperative by the Transportation Act of 1940, requiring payment prior to audit and settlement by the General Accounting Office, and it would appear that the results indicated as a result of the above-mentioned study made in 1937 properly reflected time required for payments after preaudit, as the system operated under the conditions noted.
III. (1) Instances in which more than 3 years elapsed between the date of delivery of the shipments and the date of presentation of the carriers' paid bills:
(2) Additional instances in which the lapsed period exceeded that of 2 years as proposed in the present bill:
IV. Request for statistical analysis of total overpayments to carriers collected back by GAO audit: The records do not reflect any definite segregation of amounts in individual overpayments according the various causes that may have contributed to the overpayment. In the audit, as contemplated by the Transportation Act of 1940, our concerted effort has been to recover the amount found overpaid, in the aggregate, on the particular voucher under audit and while the request upon the carrier for refund shows in detail the basis considered proper both as to rate and as to land grant (where involved), no statistical analysis of the basis for the exceptions has been considered required under the terms of the statutes or justified otherwise, since such analysis would have required an expenditure of time and energy which the pressing conditions under which the audit had to be made would not permit. Consequently, the records do not show currently just what part, in dollars and cents, of the aggregate overpayments to carriers for a given period is attributable to their failure to deduct land grant and what part to other causes; and such a showing could be made only after the making of extensive statistical compilations not otherwise required and which cannot be effected in time to serve the purpose of your request. However, as bearing upon this subject, the following is quoted from my letter of November 10. 1944 (B-44859), addressed to the then chairman of your committee:
"In an endeavor to comply as nearly as practicable with your request and with a view to furnishing the nearest approximation—that appears to be warranted-of how much per month the overpayments by reason of improper deductions for land grant are running, effort has been made to obtain an expression of opinion of those engaged in the audit as to these features and to correlate them to the overpayments found as indicated above. As a result of such effort it is found that the concensus of opinion of those engaged in the audit may be summarized as follows:
"(a) Approximately 50 percent of the overpayments to rail carriers result from errors in no way related to land grant, such as improper classification of commodities; misinterpretation and misapplication of tariff rates, rules, and regulations; failure to absorb incidental costs properly for inclusion in the transportation charge; failure to use export rates when applicable, etc.
"(b) Of the 50 percent of overpayments involving land grant, 80 percent of the amount thereof results from the carriers' failure to allow any land-grant deduction and the remaining 20 percent from erroneous computation of such deductions resulting particularly from the erroneous or disputed application of published division sheets covering the apportionment of revenue between the carriers participating in the routes involved, and failure to apply the most advantageous land-grant route.
"(c) Approximately 18 percent of the total transportation payments stated as audited, in the above table [during part of 1944] were made to steamship, air line, and motor carriers and 82 percent, or $306,833,908, to rail carriers. Of the total overpayments, 82 percent, or $15,743,500, was made to rail carriers and approximately one-half of this amount, or $7,871,750, represents overpayments due to errors involving land grant and such overpayments represent 2.565 percent of the total payments made to rail carriers."
For general background on the subject of land grant and the relative proportion thereof in the Government transportation business during the war years, see letters of the Comptroller General to the late Congressman John J. Cochran, dated May 15, 1944, and November 1, 1945, printed in the Congressional Record, 91 Congressional Record A-4636-4637.
The actual figures showing the amounts collected back from common carriers and deposited in the Treasury during the past several years, as a direct result of the General Accounting Office post audit, are set out in the Comptroller General's annual reports as follows:
In addition to these collections, the General Accounting Office is advised that carriers have also refunded about $36,000,000 through administrative agencies, in anticipation of requests for refunds by or as a result of inquiries originating in this Office. It is reasonable to believe that many millions in excess of this total have been refunded and deposited directly, but information thereto has not been furnished the General Accounting Office.
The additional items referred to as outstanding consists of:
(a) About $80,000,000 representing notices of overpayment issued by GAO for sums which have not yet been collected back by refund or offset.
(b) Approximately $100,000,000 of overpayments not yet reduced in the audit to the notice of exception stage, as explained in the memorandum accompanying the Comptroller General's letter of March 18, 1948, to the Senate Committee on Interstate and Foreign Commerce.
V. Audit since repeal of land-grant: As pointed out, it cannot be claimed that the overpayments collected back are attributable only to the rate reductions under the land-grant laws, which were repealed effective October 1, 1946 (59 Stat. 606). As some further indication that sizable overpayments still continue to be made under the present commerical rate standard (except for reductions to the United States under sec. 22, Interstate Commerce Act) and remain to be collected back in the GAO audit, the following table shows the notices of overpayment issued by the auditors during the present calendar year, up to April 6:
Due to the time lag of 3 months or more, as above explained, many of the payments made early in 1947 covered shipments made before October 1946, and therefore were charged on land-grant basis. While the percentage of payments on land-grant basis approximated 50 percent during January 1947, by the following 2 months the ratio had been reduced to 20 percent. Yet the overpayments, as shown by the table, continued to appear without any such corresponding abatement.
COMPTROLLER GENERAL OF THE UNITED STATES,
Washington, December 13, 1937.
The honorable the SECRETARY OF THE TREASURY. SIR: There has been considered the matter presented in undated letter received in this office on or about November 10, 1937, from your administrative assistant, as follows:
"There has existed for some time a situation with respect to settlement of bills covering transportation of Government property which has become so serious it is felt that remedial measures should be taken. The element giving the most concern with respect to these accounts is the delay in payment ranging from several months, in most cases, to a year or more in others.
"It has been brought to the attention of this office that as of July 1, 1937, there were outstanding in favor of the class I railroads 94,182 bills aggregating $11,749,774 rendered prior to May 1, 1937, of which 35,761 bills amounting to $4,683,946 were rendered prior to January 1, 1937. The short-line carriers, the Railway Express Agency, and others are also affected to a lesser degree.
"Serious complaint has been voiced by the executive officials of the carriers and a request presented that some method of handling be devised whereby their accounts will be adjusted more promptly. It is pointed out that in the field of commercial traffic the Interstate Commerce Act requires the payment of charges within 48 hours after delivery, in most cases, and in no case is credit permitted in excess of 96 hours. Obviously it would not be possible for the Government to comply with the provisions of the act in this respect but it is felt that every effort should be made to effect the most expeditious settlement of the accounts.
"Before suggesting what is considered a practical remedy it appears desirable to review briefly certain facts relating to the procedure for handling transportation accounts. Prior to the enactment of the Budget and Accounting Act of 1921 such accounts were audited and paid within the several departments and establishments. Subsequently there was established by General Regulations No. 13, issued by the Comptroller General on November 25, 1922, the method now followed, with certain modifications, by the civil agencies generally. The Military Establishments follow substantially the same procedure in effect prior to November 25, 1922, in accordance with an opinion of the Attorney General rendered at the request of the Secretary of War.
"The procedure established in General Regulations No. 13 requires that transportation bills be transmitted by the carriers to the administrative office concerned for the purpose of auditing the accounts to determine that the services were properly authorized, rendered by the carrier, payable from public funds, and that no payment has been made. Certain other action on the part of the administrative office is also provided, after which the bills are forwarded to the General Accounting Office for audit and for direct settlement with carriers.