Hughes Transp., Inc. v. United States

Considering record entire “13. TRANSP., HUGHES Inc. case, not sufficient is the evidence negotiations lead- v. establish that ing Atoka of the the execution UNITED STATES. Agreements representa- Supplemental COMMONWEALTH OF KENTUCKY tions the effect were made to payment of would assume the defendant UNITED STATES. any expenses out as other than those set No. 525-52. Agreements, in said as construed ease in the Choctaw of Claims United States Court of Claims. previously herein mentioned. 4,May Considering “14. entire record herein, case, presented evi- as (1) establish dence is not sufficient part duress or coercion negotiated Atoka who Commissioners Agreements, (2) Supplemental or any mistake of there was mutual party law and fact between one other, (3) or a mutual there was law, (4) mistake of that the Choctaw or meaning did Indians understand the Agree- and intent of to language

ments, (5) used in that the Agreements said with reference to the expenses to the defendant be borne expenses

was intended include brought, (6)

for which is suit any justify belief petitioner

the members of tribe that the contemplated

defendant or intended to expenses bear for which suit brought.” The Commission also found that delegates participated Choctaw who

negotiations leading to the execution of agreements Supplemental Atoka and highly extremely educated and

capable men. study

We find from a appeal record on and the briefs and

argument findings of counsel that Commission, conclusions appellant’s claim,

to the merits are supported substantial evidence. of tire Commission dis- decision petition is,

missing appellant’s there- grounds

fore, herein affirmed

stated. ordered.

It is so Judge,

JONES, Chief MADDEN WHITAKER, Judges, concur. Judge, JONES, LIT- Before Chief MADDEN,

TLETON, WHITAKER, and Judges. Judge.

LITTLETON, upon This a contract of is suit based carriage by whereby vehicle, plain- motor tiff carrier seeks to recover the difference freight charges between the amount of paid plaintiff by (as the United States shipper) plaintiff and the amounts as- ap- (1) serts are due it either under the plicable approved Kentucky intrastate tariff, required by Kentucky law and regulations, (2) or in the alternative un- plaintiff’s interpretation der of the terms portion contract of of that charged specified which the rates to be Quotation (plaintiff’s No. hereinafter full). out in set original plaintiff’s peti- On the basis of tion, parties both have filed cross-motions summary judgment for and defendant alleging has asserted a counterclaim vari- overpayments by plaintiff ous made payments on numerous for by performed plaintiff services for de- argu- the occasion of oral fendant. On court, open plaintiff in of the cause original petition was allowed to amend its addition of substantial number comparable upon transactions judgment plaintiff seeks on the same grounds original as those asserted in its petition. Defendant also asserts a coun- C., Washington, Myse, D. Daryal A. petition. terclaim on the amended C., Washington, Myse, D. Hand & agree (1) Both plaintiff. brief, for plaintiff entitled recover or de- event is George Atty. Gen., Jr., Buckman, D. J. allowed, fendant’s counterclaim is brief, Atty. Gen., Catlett, Asst. M. precise num- involved on the total sums Kentucky, inter- Commonwealth for to be determined ber of are venor. Accounting Office, (2) the General Washington, C., summary judg- Smith, D. that the cross-motions S. Lawrence Atty. Gen., Burger, submitted to the court un- Asst. ment are now E. Warren U.S.C., 51(e),1 28 Rule determi- der defendant. counsel, shall, practicable, rogating if as- 1. Rules of Rule Claims, 1953. what material facts exist without October certain revised controversy Judgment: Summary and what material substantial Adjudicated actually good Fully faith contro- “(e) facts are Not Case thereupon rule shall make an this It order on motion under verted. If Motion. appear specifying facts whole without judgment not rendered is including controversy, the ex- asked and trial substantial relief for all the ease damages hearing necessary, amount to which the Court at the tent examining pleadings controversy, is not motion, other relief directing proceedings such further inter- before it evidence And Kentucky, plaintiff legal involved Commonwealth of the basic issues nation transport articles of such was authorized to and the determination therein highways 51(e) dispute. claim Rule involved over the facts as are not solely State, entry contemplates interlocu- of within reserving any tory judgment further as a carrier motor vehicle. Quo- questions amounts On issued of fact as total March any. quotation recovery, 29. This was filed if tation No. involved with the United States and maintained facts, except material as herein- Army February Department until indicated, dispute. after are not provided as follows: corporation. Plaintiff is a South Carolina granted period permits During Depart- of the above Under effective transported plaintiff Transportation quotation, of Motor

“hughes transportation, INC. meeting street road

CHARLESTON,SOUTHCAROLINA and Subs MC-102682 I. C. C. No. Docket Kentucky & 536 Permit No. Quotation 29 Can- No.

U. S. Government Quotation Nos. cels U. Government S.

24-A, 25-B, 24-A, 25-B, Sub. 1. Sub. Quotation

Special on Government S.U.

Freight Moving on Government S.U. Lading

Bills of Commodity -Explosive Class Ammunition. : A.-— Territory: Depot, Between Blue Grass Ordnance

Richmond, Kentucky points and all Car- rier is authorized to serve. Subject to Rail or Truck Motor Rates

Rates : which ever is lower.

Minimum Weight Classification 20,000 75%

*25,000 65% Shipments subject Truck Less Load Rail Less Car Load Or Motor Truck Rates Truck Less whichever Load Rates is lower. Lading may *Bills of be referenced cross

particular shipment advantage to take of lower classification. Transportation, Hughes Inc., Charleston, Route: S. C. March Date Issued:

Effective : Expires May days canceled ten (10) notice. : Issued X. O. By: Bunch, /s/ Jr. Vice-President” ship Army Richmond, Kentucky, Department numerous Knox, of the and Ft. Ken tucky (135 explosive miles), for can ammunition ments of also between Rich projectiles, explosive Camp mond and Breckenridge, smoke non with at Mor Depot, ganfield, Kentucky (272 miles). Quota Ordnance Blue Grass between just. Upon established, the trial of the deemed as are action the trial shall be accordingly.” specified shall be facts so conducted action Department transportation. bills claimed tion No. with the Plaintiff’s file freight suit, charges, Quo- Army during period in in accordance with of the Kentucky per De tation No. rate of 81 cents was never filed with the Transportation pounds transportation partment for hundred of Motor required approval by Department, Knox, as between Richmond and Ft. and at by Chapter per pounds Revised the rate of 109 281 of the cents hundred applica effect, transportation then in Statutes between Richmond regulations Department Morganfield. issued charged ble The amounts II-6).2 (Regulation Neither thereunder by plaintiff represented interpretation appear nor defendant Quotation proper ap- No. 29 and the requirements of above aware of the been plication quotation of such tó the first- throughout period class rail rates as shown in railroad tariff question thereafter. and for some time Agent Spaninger’s known as C. A. K. R. application C. No. 142. Plaintiff’s All were made Quotation (which, lading we have stand- No. as said bills of approved by time, form, and, the was not filed from time to ard Kentucky Department completed, plaintiff of Motor Trans- portation) appropriate to first-class rail officers of the De- this tariff filed with Army However, partment correct. its bills for such was the reasons of the compensation, Kentucky or portation any trans- Revised different for the 281.590 of the Section persons property provides: or or for Statutes public therewith, hereby service in connection than “It is declared to be rates, charges specified provide policy fares and of this Commonwealth to impartial regulation and its tariffs classifications filed with for fair and transportation of all department subject time; provisions and in effect at to the any chapter, nor shall common as to carrier refund or fares or so administered rec- any part ognize preserve rates, remit of the and the inherent advan- charges specified, give any tages type transporta- so or or of motor make of each preference tion; promote advantage safe, adequate, unreasonable any or to economi- to subject person, any person any or cal and and to efficient service foster sound transportation unreasonable discrimination. economic conditions in and “(2) among carriers; encourage charge, No contract the several to carrier shall demand, greater, collect or receive a and maintenance of rea- less the establishment compensation charges transportation or different for the trans- sonable for such portation persons unjust property discriminations, service, or without or for any preferences advantages, service or or un- connection therewith undue fair or destructive to than required competitive practices; that contained in the contract to department cooperate be filed with the and in with the several states and effect time; any duly thereof, at the nor shall authorized officials all contract car- the to the end any part developing, coordinating rier refund or remit charges specified preserving transportation contract, a and state or make any give preference system or unreasonable motor vehicles as definedin this advantage person any subject chapter adequate person, any to to meet the needs of any provi- to All of the unreasonable this Commonwealth. discrimina- chapter tion.” of this shall sions be administered carry Regulation requires filing with the view and enforced to out II-6 of a policy.” the above declaration bilateral contract under which the carrier (2) Kentucky proposes operate, containing 281.675 of the Section Re- requires charges Regulation vised Statues that: to made. The fur- “Every provides charges made a contract car- ther that the in the con- transportation service shall be rier for tract— “ * * * reasonable, just and shall be com- shall not be less than the charged charges parable the rate com- minimum made common car- carrier, and such contract carrier mon riers for the same or similar service * * * adequate, efficient, except that, if, opinion safe ana furnish shall Department Transporta- service.” [of reasonable Motor , tion] 281.685 of the Re- different Section rate should be made provides: may approve rendered, vised Statutes for the service charge, “(1) carrier No common shall same.” demand, greater, collect or less receive Quo- 7-A, used forth, No. by which tariff was one hold that we set hereinafter Accounting in its referred rail tariff the General Office 29 and the No. tation attempt not, and circum- what facts arrive at is considered under the to are determining provi- proper stances, applicable be the rates under the transporta- Quotation However, legal if sions No. 29. proper Quotation Comp- be- No. is not in this case. tion involved ap- approved cause it by was not filed with and did not undertake troller General Kentucky Department Quotation Motor rail tariff. ply No. 29 to the Transportation, then motor tariff Accounting audited Office The General rates for of ammuni- charges transportation, plaintiff’s tion, as shown in Motor the Intrastate Quotation interpretation of under its charge 7-A, clearly require Tariff according application, 29 and No. per pounds 204 cents hundred for the Ft. office, interpretation of that shipments, Knox-Riehmond 266 cents freight approved tariff “Central motor per pounds hundred for the Richmond- Freight Tariff As- and Southern Motor Morganfield shipments. Agent, sociation, Incorporated, Ken- Freight opinion tucky We are inter- Tariff Motor that the Intrastate pretation Accounting 14),” Ky. of the General (MF-DMT deter- No. No. 7-A Quotation ap- Office of 29No. and its to Ft. Knox the Richmond mined charged plication Motor Intrastate should been Freight 7-A, pounds, Tariff No. inter- per of 67 hundred the rate cents pretation by office, Morganfield ship- incorrect. the Richmond However, per for the reasons hereinafter hundred ments at pounds. of 87 cents the rate stated, unnecessary against we find it to discuss protests Plaintiff’s Accounting Accounting this decision of General action of the General Office May Office. rejected, and in Comptroller Assistant General further plaintiff’s position is It that inasmuch considered the and redetermined case carriage as of involved the rate for the Ft. Knox to transportation highways over the of the per pounds on be 43 cents hundred Kentucky, Commonwealth of between Supplement interpretation basis of his of points wholly Kentucky, within Kentucky 44No. Intrastate Motor transporta- tract was one for intrastate Freight (This supple- Tariff No. 7-A. governed by tion and tucky law; such is Ken- in was not effect at the dates of ap- in the of that absence transportation.) by proval Kentucky Department of Transportation quotation Kentucky Motor of a Freight for ap- Intrastate Motor for lower rates than those regularly Tariff No. 7-A was a tariff plicable to motor approved intrastate common car- Kentucky with and file riers, 7-A, under tariff Department Transportation. the same of Motor transportation, similar those motor com- interpretations Either of the above of applied; mon carrier rates must be that Quotation freight No. in 29 results accordingly plaintiff judg- is entitled charges considerably below those re- applicable ment on motor the basis quired transportation by for this Ken- common carrier rates contained in the tucky provides law which in the Kentucky approved Motor Intrastate specific approval absence the Ken- 7-A, precise Tariff No. amount be tucky Department Transporta- Motor an determined after audit the Gen- charges tion, the contractual a con- Accounting eral Office. carrier tract shall not less than charges Kentucky has minimum of common Commonwealth carriers by the Court to intervene for the same or service. allowed similar The been charges party ap- plaintiff, minimum inasmuch as it of common carriers as type pears has a real for this are to Commonwealth service be found legitimate seeing Kentucky in interest that its in Motor Intrastate Tariff according law; applied implied (3) tariffs its laws based on a are in regulations. posi adversely that if It is intervenor’s this court should hold by plaintiff from to tion that the defendant on the first contentions collection two charges above, any plaintiff may United for mo then still States recover highways, transportation estopped tor be because over its is to assert against Kentucky involved, points any high- tween the United States rates applicable by Quotation than than less rates con er the full allowed those No. Kentucky tained in Motor 29. Intrastate A, supra, unlawful Tariff No. would be 7— We consider first the defendant’s con- regulations in under the force laws and con_ tention to the effect on this reIative judgment Kentucky, in and that tract jurisdiction Federal exclusive required amount than that less Federal over the three en- impair integrity tariff would of Ken c]aves Kentucky located in and between tucky s motor carrier question took system.3 place. plaintiff’s Defendant effort resists has ac Where the States charges freight are re- collect quired property within a State following quired by law on the purposes provided manner and grounds: (1) the Commonwealth I, 17 of the for Article Sec. clause regu- constitutionally Kentucky cannot Constitution of the United within, activity at, transactions late jurisdiction Federal Government resulting enclave over which within the en confines (2) jurisdiction; if general exclusive, exclusive has clave is in in the ab sence of the law of valid reservations the State involving ship- consenting acquisition. intrastate transaction as ments, to the Federal Surplus Trading Cook, Claims does not Co. judgment jurisdiction to award 74 L.Ed. 1091.5 Even indi- in excess of those absence of such basis reservations Quotation 29, consent, however, do so State’s cated because state laws 6 rendering judgment acquisition would a effect at the time of amount Federal 4. “Sec. 3. In trict Authority Erection the Consent may, by Seat dock-Yards, 67 was the State Cir., er of ^[*] * system. Commission, despite 1. “The all * * recover ^[*] rate, S.Ct. Steele v. General Acceptance tariff issued permitted (not exceeding 154 F.2d of the in which Cases *’> integrity 8—Powers Cession of To exercise * * * 439, over freight Congress and other needful Forts, Magazines, Arsenals, whatsoever, Attorney Government of the to intervene in the interest of of all Places by of that State’s Same shall Congress, particular charges prescribed and to a suit ten Miles a contract exclusive the Texas Railroad Mills, Congress Legislature shall have General of 402, over such Dis- by purchased 329 exercise become the reversing the United States, Legislation the be, square) as Buildings; U.S. for the carrier of the Power a low Texas 433, like in 5 6. 5. utes —1942 tially which rendered tions March Pike, tion carriers Quotation Kentucky sonal of taxes on blankets payment company could not be taxed this suit. for Pulaski case had of tion. States The Provisions of the Kentucky, the State of Arkansas enclave in the the court held that In a property with the consent of the the United the federal been same suit County, Arkansas, motor vehicle appearing located regulating illegal Surplus effect situated on the enclave by acquired by Chapter as the rates the States those in Surplus Trading both the State. prior enclave involved in and in violation of purchased by Trading Company in collector of taxes rates of contract without reserva- 185 of on and off Fort to the Chapter 281, of those Revised Stat- private per- indicated the United legislature to enforce the Laws substan- acquisi- Act of por- Co.

219 law,7 and tion.10 It state has also been held federal with inconsistent not imposed com- purposes for license tax cannot be not detrimental established, panies respect have with to transactions which the enclave was government en contracts with on the the federal in effect been held to remain Congress. substantially place abrogated by which within the took until clave Sadrakula, confines 309 of a federal enclave.11 v. James & Co. Stewart 596; L.Ed. U.S. S.Ct. courts have In at least two cases the Ry. Chicago, v. Mc R. Pacific Co. I. & over which held enclave that a federal Glinn, 5 S.Ct. U.S. acquired exclusive the United jurisdiction, has States L.Ed. 270.9 part state remains geographically, and extent to some held stat- The courts that state regulation. subject municipal Howard calling penalties en- utes cannot Sinking Fund of against Commissioners fed- forced contractors with City Louisville,12 624, 73 government to which eral where the act 617; City of Wichita place penalty en- was took 45, 182 Bowen,13 Falls v. 143 Tex. S.W.2d tirely upon a enclave over federal jurisdic- had exclusive imposition possi- R. of a state license regarding 7. Defendant’s contentions quali- corporation Illinois tax an statutes, will be ble conflict with federal Virginia, was fied transact business considered hereinafter. upheld by the court where a substantial engaged against 8. In a suit a contractor corporation’s work on con- constructing post office States struction contract the United enclave, on a federal States building post of a federal officeon wrongful was allowed to recover for the required the use a federal enclave deceased, employee death the of, adjoining, streets outside but the Gov- ground contractor, property. ernment See 91 A.L.R. at prescribing York statute certain New page 779. safety measures to be taken on construc- Supreme type question 12. In the case the tion work of the applicable Howard pages 626, 627, at on the en- said 344 the construction clave, having page 467: statute been effect “ * * * may prior its mu- A state confonn to and at the time of the Govern- plan, acquisition nicipal so to its own structures ment’s conclave. long does interfere with state York fact law enforcement of New jurisdiction might within the well the exercise increase the cost of government States. the United Ken- federal area struction to held not gave tucky’s acquisition handicap to this consent be such a Govern- power require to exercise ex- ment’s efforts as to local en- jurisdiction give way. area. A clusive within the actment to change municipal did not in- of boundaries in Plaintiff this case was to re- allowed 9. jurisdiction least terfere in the with the company cover of the railroad area the States within the or of United engine value of a cow killed the with- disposition prop- its use or with in the limits of Fort Mili- Leavenworth erty. of a within a The fiction state state tary Kansas, Reservation in under a State validity prevent no can have state in law existence at the time the enclave exercising power over the fed- acquired by the United States and boundaries, long within its so eral area as existing held not be inconsistent with ju- is no interference with the there laws federal Government. Federal risdiction asserted Gov- rights Dairy Department sovereign of The 10. Pacific Coast ernment. relationship antagonistic. Agriculture California, are of 318 U.S. not dual 761; cooperation are Western Un- Accommodation and aim. It is their 63 Telegraph Chiles, friction, not Co. v. fiction to which ion we give L.Ed. must heed.” 29 S.Ct. 53 994. People case, City of of 13. In of Wichita Falls Co. v. State Oil 11. Standard right City upheld California, 78 court annex 291 Sheppard 775; Ralph Field, & Sons Con- Field and Sollitt Kell strip of Vir- and held that Route v. Commonwealth 70 Co. struction ginia, through both A.L. ran federal 172 S.E. enclaves 161 Va. (State pay The funds have held that local courts more than the contract rate carriage appli- regulatory of these laborers. municipal) or are laws The. upheld power court State Com- high- using public cable to carriers the, stopping mission to issue.the order ways transport employees transportation being by. performed points soldiers from outside federal Lichtenberg under his contract with the enclaves, points enclaves to inside such Government, stating (1) that the federal under contracts with federal officials government’s lack of authorization for Annapolis In Baltimore & enclaves. expenditure of more than were funds Ry. Lichtenberg, Co. v. 176 Md. Lichtenberg committed to the contract (Md.), Lichtenberg, A.2d inde- an justify bringing did not opera- into engaged pendent contractor in intrastate upon Maryland highways tion system single transportation, motor had a conveyance Maryland law; outside period for a exclusive limited (2) Lichtenberg, as a car- un- with officialof hire, using rier Maryland transported der which he from Balti- roads on fixed schedules between fixed more, Md., employed by men termini geographical within the limits' proj- States to Government construction state, grounds and that the naval Annapolis, ects located on sites near were such a fixed termini within the both sides of the Severn River. Lichten- meaning regulatory state’s stat- berg permits required did not ute; (3) that the state by Maryland law and was not conform- statute bore a reasonable relation to ing including regulations, to the State’s highway preservation safety regarding rates, transportation. motor passengers carried over its roads. Upon complaint of the Baltimore & parte See also Marshall, Ex 1918, 75 Fla. Annapolis Railroad the Public Serv- 97, L.R.A.1918C, So. Maryland ice Commission of ordered the operation question stopped an il- In the instant the contract case legal highways transportation use of the State’s between of involved the property. belonging gov property and the Government Baltimore to the federal shipper-consignee, When the Government was unable to se- ernment as a con cure the same services elsewhere at the tract carrier motor vehicle licensed to price low contained its contract with Commonwealth of do business Lichtenberg, joined proceeding Kentucky. performance of the con The preserve Lichtenberg. high the contract with use of state tract necessitated the ways Among things, govern- other the federal federal enclaves located between pointed out wholly geographical it did not have within bound- city City ly A became a street. ordinance to Fort Knox. District imposing gross a tax on income those city’s for the Western District of Ken Court tucky operating hire over busses for held that the Commonwealth’s con streets, fixing rates, acquisition was held to be of the lands now sent against Bowen, respect occupied enforceable Knox Fort did reserve passengers right levy any to his with- in the state the char Sheppard Field, against property limits of tax acter owned Commanding enjoyed privileges with the officer. within the confines of City Brewing Co., the fort. Falls Inc. v. appears 14. It federal that enclaves Reeves, D.C., F.Supp. 35. The Ken acquired tucky in the instant case were Appeals involved by Court of has held that the ways over jurisdiction United States various try State courts have no persons long period of time and with the vir- a for crimes committed within the unqualified Kentucky. tually consent of limits of Fort Knox. Commonwealth v. August 16, 1892, Ky. King, 699, Acts of of the Gen- Act 68 S.W.2d 45. A cu>-u Assembly, exception general Laws of eral ous of rule ex p. 227; Kentucky 1892-93, jurisdiction Re- clusive federal over Fort Chap. (§ appears vised Statutes 3.010 Knox in the ease of Atcher v. Paragraph 2376). Lincoln-Mercury, Inc., Ky., 3.030 of the Elizabethtown specifical- relates Revised Statutes S.W.2d that case the pick- Commission Except the Louisiana Public Service Kentucky. for the of aries up being body and, hearing, after set unloading property a that being in in Louisiana impossible for the contract aside as transported, it was commerce, subject therefore mo- trastate perform his contract regulation rates, service, etc., the State as to the use without tor gen validly Accordingly, and in violation of a issued highways. since State’s The State substantially eral order of Commission. and almost was railroad, court, upon application of the entirely performed the confines outside or set Public Service Commission’s enclaves, we are of of the federal opinion ground der aside as null and void on the fall within the it does not that gov- shipments were interstate jurisdiction the federal exclusive delivery character because was to be Ralph & Construc- ernment. Sollitt Sons Virginia, made on a federal enclave. The court tion v. Commonwealth Co. authority Annapolis reached this supra; conclusion Railroad Baltimore & supra. of its decision in of Natural Lichtenberg, case Gas do not We Co. Corp. Murphy Corp. agree transportation and Oil v. Wil with defendant Cooper, highways liam A. Collector of Revenue two fed- over a between State’s Louisiana, July single the State of enclaves, rendered eral located within a 1952, holding State, land amounts to interstate commerce. over which the legislation support government acquired There is no federal federal has exclu nothing in jurisdiction this view and there is beyond power sive definition of “interstate commerce” physically the State in which it is located Federal Motor Carrier Act which citing control, Trading Surplus tax supports such conclusion.15 Cook, Co. v. 50 S.Ct. 455. complete We are in accord with the hold carefully the deci- considered We have ing in tax the Louisiana case but do not Court, 19th Judicial District sion think it is to the facts Rouge, of East Baton State of Parish n transportatio case for the reasons City Louisiana, of Kansas in the ease" stated earlier herein and on the au Railway Co. v. The Louisiana Southern thority of the cases discussed. Aside Commission, rendered Public Service from the Louisiana ease relied on de May un- we find ourselves but fendant, decision, agree we know of no andl there with the conclusion able to any case, In that carrier was have been reached. case the unable find hold ing which had a railroad transportation that such is in inter gasoline from Lake state commerce nor can we see how the Louisiana, Charles, Air question to Barksdale fall within the Louisiana, Base, subjects Congress a federal Force also over which intended jurisdiction government exclusive within the the federal enclave to have sole agreed regulatory power.16 Kelly, of the United States. upon See Director Washington established less than that v. State ex rel. Foss jurisdiction upheld appellate court constructed was such an easement jurisdiction in an automobile state court and remained the lower .the within Kentucky. occurred case where accident the Commonwealth of accident 60) highway (U. run- Route on a state S. provides: 303(10), § 15. 49 U.S.O.A. appeared ning through Fort Knox. It “The term ‘interstate commerce’ means although with- the accident occurred any place between commerce a State fort, the land on limits of the any place in another State between road was constructed been which the had places through in the same State another private acquired in 1930 the State from State, whether moves commerce right-of-way persons for the con- wholly by partly by motor vehicle or mo- highway; that struction of the when partly by rail, express, tor vehicle and government land federal condemned be- or water.” private persons longing for to the same City acquisition Hanley Knox, v. Kansas Southern in Fort 16. In inclusion subject Ry. 617, 214, existing easements; Co., S.Ct. 187 U.S. 23 333, defendant, right-of-way highway 47 L.Ed. cited on which 222 3; 592, 425, 87, 816. 1, L.Ed. U.S. 67 L.Ed. 82 43 S.Ct. 302 Stoutenburgh Hennick, 58 S.Ct. U.S. undoubtedly 141, The 9 cases cited state 129 U.S. v. implied respect in 637, Op.Attys.Gen. law with to “contracts 256, 23 L.Ed. S.Ct. 32 opin- phrase law” as the is used those 299. They inapposite A ions. here. are We hold that definitive statement of the theoretical involved question “implied distinctions between contracts moving com shipments in intrastate “implied in fact” and in law” is not those merce; performance required, apparent the in order to make necessarily exclu involved the contracts inapplicability of the rationale of the highways Kentucky over sive use of pre- cited cases to the situation here Kentucky which the Commonwealth reject attempts sented. We taxo- government has federal and not jurisdiction, arrangement concepts nomical of the two is not and that in favor of a consideration of reasons activity at, regulate attempting or a Thereby, behind the rule. solution is enclaves, within, federal transaction meaningful simp- made more and much Kentucky highways rather use of but ler. enclaves. outside such It should be noted at the outset that as- is that Defendant’s next contention “implied “quasi-con the term in law” or suming one for intra- the contract appear jurisdic tract” does not in our freight subject to the state tional statute. 28 U.S.C. 250 The *. § laws of the Commonwealth language is: statutory the state so that (except “All pensions) claims legally ap- only which can be is the plied one * * * upon any founded con question, re- tract, express implied, or with the covery of that on the basis this court States, or precluded the doctrine that rate is damages, liquidated unliqui or suits Tucker Act does authorize dated, sounding tort, in cases not against “implied United States respect party of which claims the doctrine in law” contracts. As the has against would be entitled to redress developed court, it has a been the United States meaning either in a court specific

definite law, equity, admiralty if origin and, opinion, stems from in our * *." United States were suable: inapplicable renders it to this case under herein. the facts and circumstances The statute to this earliest February 24, 1855, court, Goodyear 10 Act of & Rub- Tire Defendant cites 612, provided States, 370, Stat. that the court should 62 Ct.Cl. v. United ber Co. 287, 306, hear * * * determine claims “founded 48 72 S.Ct. affirmed 276 U.S. contract, express 575; States, 55 v. United L.Ed. Sutton government implied, with the and modified 256 affirmed Ct.Cl. * * 1099; United In the amend- 65 L.Ed. 41 S.Ct. U.S. 3, 1863, States, 371, atory 58 Ct.Cl. of March Stat. United Act Merritt making States court court a United affirmed jurisdic- sense, 643; In- v. Minn. the contract United States fullest in the unchanged. the Act tion remained vestment 911; 3, 1887, R. R. v. the Tucker Baltimore & Ohio Stat. March jurisdiction expand- Act, affirmed 261 the court’s Ct.Cl. Territory. ty-four Supreme Indian. the State of Court held interfering jurisdiction to fix action was held void as did not have State’s Arkansas points through Congress regulate power in Arkan- rate between with the transportation took among actual where the sas commerce several states and place partly in Indian outside State the Indian tribes. Fifty-two Territory miles of in Texas. or lay * nearly § in Arkansas and six- Now 28 U.S.C.A. route upon operations the and its founded fiscal vari- ed to claims are so include following and, ous, agencies the federal constitution its so numerous provision, scattered, vigi- quoted there above that utmost the language: public lance would not was added the save the from losses, the “ most serious if the doc- * * * damages, liqui- or for applied trine of can laches be to its unliquidated, in cases not dated or would, effect, transactions. It * * sounding in tort repeal work a of all its securities. language matter in this The Tucker Act hand, On other the the mischiefs to 3, 1911, adopted in the of March Act agents the and their sureties would 1087, 1136, 36 Stat. and remains § scarcely be less tolerable.” unchanged today. passage After the of the Act of March or, implied, more ac- The sort 3, 1863, permitting against suits the curately, quasi contract, which the Claims, Government in the Court of held liable was could be Government not upon any contract, “express founded long by the courts before defined implied,” with the United original passage creat- in 1855 the act applied holdings courts the rationale and Although ing the Court of Claims. just of the earlier cases discussed de- prior could sued not be fining grant the limits of the new Act’s brought against defendants suits jurisdiction. per- States were them the United against United to assert mitted States, 1866, Gibbons v. United by way of States certain claims set-off.17 plaintiff Ct.Cl. had a contract to early established In such cases it was 200,000 deliver bushels of oats to the responsible, not that the Government thirty days. Government within With- quasi theory implied any cause, although out the oats tract, laches, gross, however time, were offered in responsible agents. Kirkpatrick, its United States v. Government official refused to receive 199; 1824, 9 6 L.Ed. Dox v. Wheat. plaintiff, the oats and expira- at the Postmaster-General, 1828, U. 1 Pet. S. thirty days, tion of the notified the Gov- 318, L.Ed. 160.18 The reason for the ernment that he considered the contract Kirkpatrick rule is case stated Thereafter, price terminated. Supreme Court, Story, J., as follows: oats increased and the Government’s laches, “Then, point official oats, previously as to demanded balance of the charge opinion by him, that the we are of refused de- be below, supposed price, court livered at accom- discharge bond, panied plaintiff laches will the threat that unless complied, buy law. The maintained as the Government would cannot general open principle laches is oats market and withhold government; imputable price moneys not the difference founded, plaintiff. this maxim is otherwise due The was to suit extraordinary preroga- notion of recover the difference the tive, between the great upon public policy. price but of the oats market plaintiff delivered government duress, price can transact its through only agents; paid. court denied business This re- Metropolis, brought by Bank 17. In United States v. 18. Both suits were against 15 Pet. the sureties of a Govern- brought against given an action official on bonds United .States for the faith- money. assumpsit performance to recover bank ful of the official’s duties. urged claimed a sum in credit as a Defendants The sureties the claim of the States on which to it United States them was debt released not, course, sue the United the laches officer to whom it could intrusted, authorized, Since the debt was assertion of the claim was States. was allowed the set-off. defendant page covery Upon Court that of pages when pel ceive the oats to make the Hence the assumed this the market time, to demand ference assumption of an oats the Court “If the Government “But it is not to the contract 428: 274-276, quartermaster.” Gibbon’s on this case is an delivery subsequently it they he cannot recover will not be after its claimant should court affirmed the price them government responsible claim, of compulsory power of appeal to the Claims, under the between that L.Ed. them attempt, under and that expiration for the offered had permitted to com- be implied contract, stating, delivered disguised after refused ceased; and have Wall. ruling in contract, its 2 Ct.Cl. at judgment known. proper named Supreme to re- right stated: dif- policy imposed by necessity, we have which confer kinds mitted to cases where tled where the tiff, courts are embarrassed this torts. The they should hold themselves liable strongest against sary exceptions. ^[*] mined. “The all ^[*] principles by the defendants have been Kirkpatrick unaccustomed absence of by way may ^[*] they governments, forbids, government may be deter- already language In a few assert Claims, United States general principle afford government are in implication But in jurisdiction upon of demands of various stated precedent and set- which the set-off, and excludes of the statutes jurisdiction, useful adjudged cases point. the exercise Dox cases.] founded guidance demands liability [Citing neces- plain- these on a per- on of for the unauthorized acts officer, its wrongs for unauthorized inflicted being in them- -those acts though citizen, their officers on the government torts. No selves has occurring engaged while in the dis- ever held itself liable to individuals charge of officialduties. misfeasance, laches, or unau- adjudged “In the cases absence power by exercise thorized its offi- determining govern- far how agents. supplied.] cers and [Italics may responsible be on an im- language Judge Story “In the plied assumpsit which, for acts [Story Agencies, 319], though “it does unauthorized, may § have been guarantee any not undertake to person interest, done its of which fidelity the offi- may benefit, have it received agents employs, cers or whom it many apparent hardships of of such would since that involve all it present strong appeals cases operations in endless embarrass- indemnify suffering courts to ments, difficulties, losses, expense individual at be which would subversive United States. “ public interests.” [United States v. These reflections admonish us to Kirkpatrick, 9 Wheat. 720 [6 L.Ed. permit be cautious dowe 199;] Dox v. [U. Postmaster- S.] the decisions of this court become General, 160;] 1 Pet. [7 authority righting, Voorhees, Conwell Ohio 523.] Claims, wrongs Court of all done Congress to individuals the officers of creation act “The Government, though they which the United General of a court may sued, presents a novel may been committed while serving though government, jurisprudence, our and in feature to claims belief that it was for such suits its interest. act limits express contracts, cases, proper In such where it founded unimportant for the nation remedy, certain to furnish a implied, Congress wisely could was asked to decide whether has reserved imply part States its own determination. of the United matter for pay wrongfully certainly to taken on for land has not conferred it It by agent States, an of the United under Claims.” Court permitting on the act suit claims founded 247, States, 93 v. United U.S. Whitside “express implied”. or At contracts damages 882, 23 L.Ed. was a suit page 345, U.S., of 101 the Court stated: implied contract on breach of “ ** * can There be no rea- pay to United States sonable doubt to limitation transportation, etc., or abandoned contract, express implied, agent cases of or captured cotton, where the of the was in Treasury established reference Department to was without arising authority distinction between actions States to bind the United distinguished contracts, out of contract or to do the on which the act alleged torts, from might those founded on implied. which have been is Supreme inherent the essential nature Court held claim unen- judicial sys- under remedies all forceable under the Court of Claims Act tems, especially sys- stated, page 93 U.S. at 256: tem of the common law.” prevail respect “Different rules Upon authority of Nichols v. pub- to the acts declarations of States, 122, 125, United 7 Wall. agents lic from those ordi- States, and Gibbons v. United Wall. govern narily pri- in the case mere Supreme 19 L.Ed. agents. Principals, vate in the latter Act, 3, 1863, held that March category, many are in cases bound permit Stat. recovery did not from the acts and declarations their the United States on the agents, basis of con- even the act or where decla- implied tracts from the unauthorized ration was done or made without or tortious acts of the any authority, Government’s appear if it agents since to do so would be to “fritter act was done or declaration was away the distinction agent between actions ex made course of delicto and contractu, ex regular actions employment; which is his but well government understood in the common public law and authority or system under our jurisprudence, case, bound such a unless it thereby subject government pay- manifestly appears agent damages wrongs acting for all scope within the his agents, committed its officers or authority, or un- that he had been held zeal, der a mistaken having or authority actuated out as less to do the worthy motives.” act, employed or was capacity in his public agent as a to do the act or passage of the Tucker Act With the make govern- the declaration Congress 24 Stat. effect * * * ment. supplied.] [Italics early codified the rule established “ * * * courts, expressed often that an in- it is better occasionally not be held liable United States would dividual should suffer dam- a suit for public the Court Claims mistakes of officers ages ex- agents, adopt for breach of a contract either than rule press implied, through which, where the of the improper act combina- agent might collusion, was tortious. tions or be turned injury to the detriment and In addition those situations where ” * * * public imply the courts have refused to an en- Langford States, 1879, v. United contract on forceable the basis of un- L.Ed. 1010 the Court or tortious acts authorized19 of a Gov- 19. Sutton v. United States, 256 U.S. v. Minnesota Mut. States Investment 1099; 41 S.Ct. 65 L.Ed. particular permitted a landlord also state agent, the courts eminent year’s part collect a rent from a so-calledhold imply a contract declined tenant, refused to pay over the courts have for services of the United where, require the United a tenant to States as circumstances

rendered under pay period authority actual fed- for more than although there was alleged, occupancy, agent where make the eral prior express wholly expiration lack- of consent the element lease, affirmatively implied reasonably had to enter ing refused not be and could year into a and had lease for a further and from and circumstances the facts representa- announced to it would the landlord that acts of the Government only during pay any for additional time where instances tives.20 Even in those actually occupied which it actually the landlord’s a bene- derived the Government premises. Goodyear Cq. private Tire & Rubber individ- a of the services fit States, imply 287, v. United 48 276 U.S. S.Ct. ual, refused to have still the courts 306, 72 obligation L.Ed. 575.21 part United of the an on the pri- although pay, as between States to study A careful of the cases obligation con- vate such an dealing liability with the contractual implied pay on the would tract theory be States, holding and that so- required equity such that natural “implied quasi called in law” or contracts unjust prevent payment in order to jurisdiction outside are of the Court recipient of bene- enrichment of Claims, impels the conclusion that un field con- of cases fits. One line arrangements der the that were made which claim- cerns the situation circumstances, and the other facts and rendering volunteer, 'services ant awas quasi the instant case involves no such having re- without United States contract. request cir- and under ceived a therefor us Government In the before case request a could where such cumstances authority agent contract with had full reasonably implied. v. Coleman be not plaintiff services States, 14 152 U.S. S.Ct. United question. so contract and the He did Hayhurst, 368; La Fontain v. L.Ed. 38 actually contract was made 623; Baltimore & 36 A. 89 Maine performed. Govern- services States, 261 R. R. Co. United Ohio agent authority had to enter also L.Ed. In an- 711. 43 S.Ct. would be valid un- a contract which into cases, closely line of related other Kentucky respects, includ- in all law der ing imply freight a contract refused to courts have payment rates re- of the part Kentucky approved United States where of the quired law clearly Transportation tariff. an indicated intent Motor facts Intrastate in existence en- was no federal statute not to There Government (certainly prohibiting a which courts ter into the might Act, 49 implied private Federal Motor Carrier as between not affecting seq.) or even example, parties. where law et For U.S.C.A. § nor the Court Claims 21. Neither 911; R. R. Co. v. & Ohio Baltimore attempted Supreme to resolve the Court States, 261 U.S. argued length by par issue, at some 816. L.Ed. precisely ties, was the as what nature tenancy that arose after the ex v. United Merritt lease, piration written within the the Su meaning law of preme of the common Ohio. claimant held They merely any allege petition of the statements, facts held that view Gov in its failed affirmative acts and basis for a claim ernment’s afford would which premises promise prime repayment to lease the an contractor year implied. overcharges was could not As other pointed to the Government briefs, out Government’s the bene the Government exacted year . than for less a contract claimant-subcontractor fit of illegal under Ohio no means law. regularly published approved contract, act and no affirmative such a negatived agent represent any attempt ad- the would not agent just clearly resulting equitably in- con- presumption relations that the tractual, pursuant since existence there was tended to contract law, express opinion contract. our individuals would But the same as intervenor, developed dispute ulti- the State tract. The which Kentucky, attempting mately proper payment enforce are not over rate of quasi contract, express plaintiff did contract but an rendered the services perhaps disagreement ap- implied, to some extent in fact. over not involve a plicability regularly published and appears This to be a case first approved Ken- tariff impression apply, to some extent. We tucky type shipment, but to this therefore, authority an orthodox line of proper interpretation of rather over the clearly obliga holds that the rate Quotation the application No. 29 carrier’s transportation contract tion of a of this Kentucky approved to the kind implied law,” is not a “contract parties tariff, which, unknown to both applied as that is doctrine to limit the carriage at to the contract of the the jurisdiction Rather, of this court. the not, agreement, time of the could under transportation rate in a contract is not any Quotation possible interpretation (of a matter for contract all if at the 29), regularly published No. result applicable shipment to the is contained rate. We that Govern- do not think regularly in a tariff approved pub and ordering shipments ment’s action in lished under either the Interstate Com Quo- after the issuance of this erroneous Act, seq., merce 49 U.S.C.A. 1 et or a § tation No. an amounted to affirmative valid state statute. Such agent by duly declaration its authorized rate spect one is “established law” with re it would not for a rate involving to par Kentucky approved valid under tariff shipment, ticular and the courts have Kentucky statutory law, and because the legally published held that the tariff of a of both actions to the contract may carrier avoided, enlarged, not or they indicated that understood and in- shipper varied “by or carrier con freight tended that rates lawful under tract, express implied, or or the tort Kentucky apply. statutes should Neither of the carrier.” United States v. Kansas party Quotation knew that No. did not City Ry. Co., D.C., Southern F.Supp. embody such lawful rates. 484, 487. In the instant case the Govern represents ment’s vary attempt defense an to This, express contract, then, an published ship tariff for the every complete as serv- detail question by ment in express an specific rendered, for ice to be rate, ignore for a lower entirely. to it freight within the between fixed termini suit, Plaintiff’s hand, on the other is not of Ken- Commonwealth limits tucky. attempt to recover from the United fully author- contract was implied-in-law basis of an performed, ized, and was executed contract, but rather to recover on the under valid and enforceable basis of tariff or rate which has been respects, except all as to the law in by applicable Kentucky established law freight specified the carrier imposing upon only not quotation, when its right, duty charge but the absolute question made. If the rate, collect such duty upon and a like quotation paid of a on the basis had shipper pay it. higher regularly taining rates than the tariff, clearly suggests published would The defendant it that the Gov- right ernment, question sovereign, had have un- because is the without is govern not bound the same law difference rules that der collect overcharge. Permitting the car- contracts entered into as an be- private persons, tween recover basis rier there- against same cir- law, e., 22 of citizens Section fore federal i. against implied Act, Ken- cumstances will be Interstate Commerce governs them.” tucky law, contract. instant Assembly In Pocono Hotels Co. Pines held general, courts In page States, v. United 73 Ct.Cl. applicable some absence discussing court, juris- contrary, Gov federal statute to the Claims, diction of the Court of stated: its ernment, when it contracts early “In contract cases it was citizens, subjects rules the same itself to appli- decided that the rules of govern private individuals. of law that cable to individ- contracts between opinion In our that rule apply uals to authorized contracts Jersey of New here. In Oil Co. Standard with the Government—that v. United 267 U.S. these, the Government abandons involving 211, 212, a suit sovereignty and submits claims policies in risk of war libel two adjudication as in other eases surance issued claimant, the Government contract. United States v. State resisted, the Government Bank, Nat. among things, in the allowance other 647.” holding for the claims. terest governing private What then is the law point Court stated: claimant on this contracting citizens under “ the same cir- * * * the United When cumstances as the and the busi- went into the insurance carrier in this case? ness, policies in familiar form issued provided in case of dis- and contracts, that Transportation like agreement might sued, must it be it of the contracts for services most accepted have the or- be assumed to federally regulated in other states or dinary in such incidents of suits dustries, and communications such as business.” fundamentally light, etc., power and are ordinary contract in Bostwick, different In United States respective Case, of the con reversing that tracting duties Lovett’s carefully by defined occupied are 9 Ct.Cl. the Government rights indeed, statute, and their their premises a lease which plaintiff’s — very except freedom to certain re nothing express provided terms spects strictly limited those reserved and the amount of rent —are regardless parties’ statutes of the knowl occupancy. claimant sued term of The edge of or of their damages those restrictions the Govern- occasioned manifest desire to contract otherwise.22 repair. The Court ment’s failure private par- pointed out as between that transporta- field of interstate In the obligation implied, un- would be ties an Act and tion, Commerce Interstate of the case before der the circumstances it, Act are two Carrier Federal Motor on of the lessee to so use regulatory of the statutes. Most injure unnecessarily premises as not including Kentucky, enacted states, have States, holding as In it. police powers re- under the similar laws bound, tenant, was likewise regulating states, intra- served stated, page 66: transportation and contracts state high- involving they use of their when “The transportation. ways usual citizens, The for such their are with imposed statutory govern limitations same laws that trolled fields relate of contract these All freedom behalf. ob- in that citizens the ligations rendered, per- implied to be services would be Jurisprudence, Mechanical Contracts, Rev.Ed., Gustavus Vol. on Williston 22. Review, Robinson, Filed 1073; Pa. Law 77 U. of 32A, H. §§ Vol. § Study Utility p. Law—A in Public Rate might investment, appear apparent unfairness as amount of return missible charged. may shipper user, when individual or be and the rates that light generally accepted viewed in the regulatory in the field laws These equity justice, standards of and since public have transportation utilities shipper illegally to whom an low rate society’s expression of been held to be quoted by may, has been the carrier particular industries intention these ignorance of and in the established rate on a basis customers shall deal with their good faith, enter into contracts with treatment, equality a matter as others the basis of such erroneous public policy interests and in best quotation. Requiring shipper such a usually provide public. These laws pay higher rates, rate or established charges publicly or be that filed, by approved statute, may tariffs and well pub- approved, once monetary result in serious losses they strictly lished, adhered to shipper, light when viewed in the regardless supplier both user and illegal quotation. However, the courts considerations, attempts other or uniformly permitted such a carrier innocently or otherwise. evade them higher published to collect the rate re- transportation, both the field of gardless negligence of the carrier’s are shipper the carrier private quoting actual fraud in rate, the lower knowledge notice of the charged since otherwise “a wide door would be statutory law as published rate and the open thrown for an evasion” of the ex- force, long they are part as press purpose statute, law a public policy designed to benefit though manner in the same public as a whole would be under- of car- Contracts awere statute.23 mined. Louisville & Nashville R. Co. v. riage than the specifying rate other McMullen, 1912, Ala.App. 662, 59 So. statutory be enforced rate cannot 683, 684. illegal rate, nor will as to such courts recovery damages regu very extent, be allowed To a limited provision latory may of such con- permit rate breach statutes contracts to that doctrine published adherence tract. Strict by at less than the rates. frequently in legal results what they do, the courts the established But unless 23. ited Bernstein Bros. ly liability Denver & R. G. W. R. Cir., In Davis v. 317 Ill. the court stated: carriers the lished the rate fixed before changes of the abuses of extortion and favoritism rier 59, v. Central rier could In Louisville “ * * * Congress private payable 44 S.Ct. shippers, ground was the freedom 193 by tariff which 278, in the relations engaged in mentioned, it had validly F.2d permitted contract between the or release Iron & Coal Keystone pay 148 N.E. that such 441, and no contract of the car which have charges & Nashville 441, charged reduce the amount such Pipe & 68 was interstate to the court held that L.Ed. 47, made Steel Wire for the correction higher are not a matter higher 50% collect existing the at materially Co., Mach. shipper 900, Railroad Co. & pages higher shipper, substantial commerce rate. rate 265 the Co., the car between between parties. Co. v. 51, legal than pub lim- U.S. was 52, In 10 Congress public ing Express, D.C., approved charge by ties pressed writing power contract of states, tbe service to pensation are fixed Commission. tbem wbich tion demands it.” ^[*] See “ every ^[*] * appellant acts of the right can prescribed also Loveless the terms of the ^[*] * * interest Commission is conclusive that was reasonable. The in modify contract of regulate by was entered into. by to be received are originally tbe schedules filed with and must private No tbe Interstate Commerce so be 104 in interstate parties though these approval by Congress doing and rendered and the com- agreement between commerce be determined accord- F.Supp. Mfg. shipment, existed. actually performed. terms, contract which to interfere with Co. v. of the schedule 809. of tbe transporta- It was the though liability the act of concerned, Tbe terms when the under its its terms so Roadway far par- ex- by as 230 ground loss, that Interstate dismissed on applies. 22 of rate Section limita- Government was bound a permits Act such Commerce (on federal, claims tion the time within with carrier made a be might asserted) in the bill governments, or for contained municipal

state and lading However, which had reference to purposes, etc. charitable govern same rules and conditions that courts has held section been shipments, commercial the rule is rights shipper “for to such no confer per- well settled in the provision is construction lower rates since the government interpretation of contracts only Com- and the Interstate missive general apply the same may rules as find merce Commission unreasonably agreed case of contracts between individuals.” to are lower And Mexico discriminatory in St. Louis & unjust Brownsville and subse- Ry. States, 169, page v. application United 268 U.S. quently as their disallow 472, page 45 S.Ct. prejudicial commerce. to interstate 899, the Chattanooga Ry. court Nashville, said: Louis & St. “ * * * Tennessee, v. State U.S. respect In furnish- ing S.Ct. 67 L.Ed. transportation, a railroad ordi- narily government bears to the contracts in Where the United States pri- relation same that it does to capacity shipper in of a interstate person using vate its facilities.” commerce, the held that courts have In United States v. Interstate Commerce is bound statutes Commission, D.C.Cir., 958, 966, 198 F.2d shippers. manner other same as States, held the Court that the United Ry. Atchison, Topeka & Santa Fe v. shipper commerce, interstate is legally published bound 891, reversing 65 L.Ed. 55 Ct.Cl. shipper, private same manner as a carrier was allowed to recover quoted approval from Union Wire regularly published tariff basis applicable Corp. Atchison, Topeka Rope & Santa question. Ry. Co., Cir., 965, 966-967, Fe 66 F.2d (1) The Government had contended denied, certiorari sovereign by general bound as follows: legislative as those restrictions “ ‘A rate tariff in, essence the Interstate contained Act;’ Commerce possible statement the carrier (2) event trans- shippers that it will furnish certain property portation was of Government under services certain conditions exempted specifically from the restric- price. for certain a When a tariff by of of to rates virtue the Act as tions legally promulgated, has become it is held 22 that thereof. Section binding upon both the carrier arrange- special a valid the absence of any shipper taking advantage it, of 22, for a rate Section lower (in essence) become, and its terms presumed to States is have the United only respects, in such obligated pay, to and became assented ” by between the two allowed law.’ duty rate; published that of supplied.] [Italics merely United States carrier serving higher Pacific Co. United no v. that’ of it at rates than In Southern applied for 47 S.Ct. 71 like those to individuals any that in the court indicated a lawful land transportation, less L.Ed. transportation, deductions, grant and that regularly published of that which law existence do could not type shipment shipper of for the do- tariff individual forbade for, necessary furnished the Seaboard Air ing, v. tracted In United States implied Cir., fact Ry. Co., a contract 22 F.2d 4 basis pay Line against published rate on of counterclaim Government’s including shipper, eight any years railroad, after Government. filed

231 regardless per applicable particularly ignorance here. This case is of his of such by shipments In made the rates express that case were or his for lower any carrier rates. without Government provision express as to the contract consequences That are capacity these charged. The the rates would be that as a to the shipper contracting Government land-grant shipments were over a made private car- with a carrier, however, route rier, supported United is further applicable land-grant required statutes Ry. City States v. Kansas Southern property ship the carrier to supra. em- case also serves to That exceeding fifty percent at rates not legally pub- phasize the rule that where paid by private shippers those including exists, parties, lished rate appeared same kind service. that It Government, to a contract car- actually no tariff was on file for such riage applies, are which private shippers. service to The carrier regardless bound such rate shipments billed the Government for the terms of their contract for a different special on the basis of a tariff rate or the demonstrable unreasonable- carrier had on file but which was not it ness rate. case the required file, law and the Govern- States sued an al- the carrier recover pay ment refused on that basis. It leged overcharge grain, held that the carrier could not re- measured the difference between special cover the basis of the tariff reasonable value the carrier’s service because, although it was on with file charged. and the rate The carrier’s Commission, Interstate Commerce the charges duly were made on the basis representatives Department of the War published tariffs. The District Court chargeable not as a matter of law (W.D.Mo.) stated common knowledge with tariff which was freight actions to recover the excess of a required by page law to be filed. At charge duly published over the rate of a U.S., page of 272 at 47of S.Ct. carrier to recover the difference between the Court stated: charge the amount of a reasonable ordinary unpublished consequences charge, “The exhorbitant filing not been affected attend the of a schedule Interstate Com- pointed, merce Act. out, with The court the Interstate Commerce then F.Supp. page per- Commission as demanded 487: (cf. mitted statute Texas & “ * * * charges but, if Ry. Mugg, Pacific v. U.S. carrier have been made an interstate 1011; Chicago & pub- in accordance filed and Kirby, Alton R. R. provided rates, lished in the In- 1033), cannot Act, supra, terstate Commerce merely invoked the carrier be- remedy for common-law enforce- lodged special cause tariff with right ment of such a has abro- been statutory the commission without gated, and enforcement of a claim (Illinois authorization Central R. R. depend- under such circumstances is States, 182).” v.Co. United 58 Ct.Cl. injured party’s ent the first ordinary filing timely complaint mentioned conse- a with the In- The above filing attending quences of the a schedule terstate Commerce Commission and obtaining finding by by body permitted or demanded a that that of rates as charged (1) to that rate have been held be the the statute unreasonable conclusively circumstances, shipper and are both carrier under the and the legally party published thereby presumed the to amount such know * * * overcharged. rates, rates become a In such a com- that carriage fully recovery for of as as if mon-law action of dam- of the ages, overcharge, contract, in the expressly forth or as set conse- by published paid ship- quence (2) be of rates must' a rate exacted only by carrier, essentially matter interstate is so question shipper preclude a federal in as between character to State legal was, is, thereof, application control carrier is what or or of published shipment, State for law thereto. what the rate should not urges II, Defendant Part * * been Motor Carrier of Com Act the Interstate complaint was dis- The Government’s general, merce inAct 22 of Section missed. supersede particular, Part of that act I. respect when the law clear that with to intrastate It seems transportation for a carrier motor Government contracts with contracts entered government. transportation, its freedom to into with interstate the federal doWe agree. provisions permitting of is limited Section 22 so- discriminatory and the called Act the Interstate Commerce rate contracts be published shippers (in manner as tween carriers tariffs the same and certain cluding private shipper. government) is with a We federal the case does ap apply justification can find no plying or motor rule carrier contracts which scope principle to come within a intrastate different of the Federal Congress shipments. Act, specifi Motor Carrier but cally provided therein that such Act was motor respect to intrastate With exclusively itself not intra performed transportation contracts transportation. state motor carrier Sec valid24 has enacted State 202(b) Act,. tion of that 49 U.S.C.A. § concerning of its use laws 302, provides as follows: making transporta highways and the Nothing “(b) chapter in this opinion contracts, we are tion shall be construed affect enters when it powers of taxation of any the several contract, like is bound into such or to authorize a motor car- States provisions of shipper, private rier to do an intrastate business on con there some unless such State any highways State, or to in- impediment statutory stitutional exercise with exclusive subject jurisdiction, or unless the terfere State any required carrier, common Kentucky law, parties a con 24. Under with, regu tract carriers to file the Commission bound are tract charges. of all ship a statement The Act larly published on intrastate tariff 11, Chap. 185, repealing of March are in manner as same ments act, is almost identical. the Interstate carriers terstate Hodge In Drive-It-Yourself Cin By-Products Co. v. & Tobacco Act. Commerce cinnati, 76 L. Corp. D. F. G. Western T. v. Chemical Ass’n, Ed. the Court held that the several Ky. holds 133 S.W.2d power, safety States have the Consti 214 of Section regulate public, to use their preferential prohibits contracts tution public highways, including their use shippers arrangements with railroads carrying private place busi freight or the Stephenson Binford, ness. a common car business as conduct of Ken and that Section rier may proper Court held tucky makes such a carrier Statutes ly regulate the rates of contract car unjust guilty discrimination. Act prevent motor riers vehicle to undue Assembly Kentucky, General respect discrimination common Chap. 17, 1932, approved March general carriers, and in a fair foster p. seq., regulating 1932, 514 et of Act high of traffic as distribution between the property by for hire of ways public highways the railroads so all neces and the motor vehifcles sary may Kentucky, facilities maintained was held constitutional. of D.C., public Glenn, F.Supp. inconvenienced inordinate 2 880. Baker v. highways purposes prohibited any 5, 3, the uses of that act § Article Sproles Binford, give any gain. also See v. 286 undue or U. carrier contract 581, 374, advantage preference L.Ed. 52 S.Ct. 76 1167. S. unreasonable patrons compared shippers as with

233 regula- year year. During life of con- power the the the each State company mo- the Govern- tract notified the commerce intrastate tion of longer comply highways no with there- ment that would the carriers on tor requirements the the supplied.] service [Italics of" paid for unless the the serv- Government Casualty Reciprocal Ex- Tucker v. See of rates ice the basis of schedule a F.Supp. change, D.C., 383. 40 approved on 'file with and subject Finally, Corporation matter the Commission the state essentially higher local (Oklahoma), the contract suit and which were with itself specified and concerns character than those rates should op- the State matters over which under had been which the jurisdiction. erating. properly denying exclusive exercise the Government’s accordingly appear against to be no requests injunction, would There impediment dis- application higher court’s to this continuance of service and of Erie under the rule law rate, pointed that at the out court Tompkins, 58 S.Ct. 304 R. 817, v. U.S. Co. was entered into there time the contract that rule body L.Ed. even as existed under valid Oklahoma a in subse and defined Commission, has been limited quent Corporation known as the general decisions.25 vested and with supervisory public power over all utili- found a case While we have not having authority and ties to fix and seeking aWhich was to recover carrier company establish with rates. The from the United States the difference contracting which the Government regularly pub- approved between public utility meaning was a within the intrastate lower lished specified rate rate appeal, of the Oklahoma statute. On contract, do not think we only argued question presented and important this is in view of authori- specified whether lower However, plain- ties cited. hereinbefore against or- contract should stand as involving tiff has cited a case a contract Corporation der of the Oklahoma State between the and a United States state which had Commission authorized gas company, electric which a higher approved The court held rates. require Federal Court refused to District actually lower rates contracted carry company the utilities out its con- legally prevail for could not under tract with the United States where the contract; power- that the State was not specified rate therein was less than the less, police power, in the exercise of its regularly published under regulate charged by pub- the rates law, state and denied the Government’s utility supplying in its lic business request injunction against for an electricity; public company’s with the exer- cessation of service under the police power paid cise the state unless the Government higher published obligation impair rate. did not of con- tract, property nor take without due In United v. Oklahoma Gas & law; process of since Commis- Co., Cir., Electric F. the fed- power government existed with sion the State eral had into a entered gas fix rates tract with pany, local statute to in this field electric com- at the whereby agreed company into, time contract was entered statutory furnish the approved electric current needed at rates in effect became Depot Fort Reno contract, Remount at certain a Walker White- specified rates, hour, per head, kilowatt 16 Wall. 21 L.Ed. period year, option of one though as did the statute itself as copied the contract length;” to extend had “it been therein at 2067; Clearfield Trust Co. v. United U.S. See, 838; 53 Columbia Law Review 991. United States v. Standard Oil suing government, of a was not public the commission federal that a utilities Act, be dif- under the Tucker collect the to state cannot contract increasing or de- ference and prevented between the contract rate either higher legally creasing' contained in the such rates. published However, tariff. District argued in the Okla- The United States enjoin Court’s discon- refusal to case, supra, rule homa that a different tinuance service and to re- its refusal govern- apply the federal should when quire company carry the terms to out citing contract, party a ment is of its with the Government v. State Van Brocklin & Another therein, specified the lower would Others, U.S. Tennessee & meaningless gesture have been a if the 845. The District S.Ct. 29 L.Ed. company could not thereafter collect argument, pointing rejected this published tariff which court case, Brocklin out that the Van clearly held the Government as a custo- attempted tax had State Tennessee mer and contractor was bound. We see which, by land principle no difference in between that Constitution, exempt from federal case and this one. taxation, in the rate case state whereas it— before unthinkable, opin- would It seem our “ government ion, * * * that the federal government responsible is enactment and en- contracting citizens of its with one forcement statutes as ordinary very and to do a common the Interstate' Act and the Commerce relating thing any way to or not in Act, among others, Motor Carrier and viz, involving existence, furnish encourages which regulatory endorses similar lighting electricity and motor acts of the states Depot. power Reno Remount at Ft. police in the exercise of the states’ why* to a con- reason see no We powers field, in the same should government of this nature tract statutory bound the same limitations position occupy different should rights ship- on its of contract as other be- been made if same had than pers and users when it acts [297 citizens.” of its tween two nonsovereign capacity, in its did as it F. 579.] here, shipper as a in intrastate com- public utili- regulation of such State Ry. merce. B. St. Louis & M. gen- companies light gas is ties as 169, 173, United 472, 473, case is con- similar, as this insofar eral cerned, the Court stated: regulation car- the State’s respect furnishing “In trans- limitations the same and involves riers portation, ordinarily a railroad contract, par- parties’ freedom government bears to the the same regard matter ticularly private relation that it does to a ap- rates, higher those than lower ” * * using person its facilities. statute provided for proved and regulations. valid equally that the Unless it is true Gov- shipper ordinarily bears to ernment as no material opinion is there In our motor carrier the same re- railroad or Government’s between difference person does,26 private that a then lation in rela- instant in the position meaning- is almost binding Court’s statement of a state effect tion regulatory Government as contractor less statute, from that completely true, undermine a can regulatory State’s that in is It case. Oklahoma above system utility company the fields of trans- case Oklahoma private shipper, be to but that argues a con- it would Defendant obligated is not true. carriage, the converse the carrier tract manner as in the same public communication, Kentucky law, and portation, clear that as under under ignorance law, published' today, ever utilities, than Federal more since many before, areas will rate carrier is not relieve either the Government collecting shipper pay- country these from user of nor the heaviest regulated ing, approved published facilities. lawful rate.- and state controlled Under all of- facts and circumstances us, plaintiff, aas In the case before Kentucky opinion this case it is our that carrier, nec- motor secured the applicable law is to this contract be- essary permission from Common- Government, tween the carrier and the Kentucky do business wealth of Kentucky and under that law and Intra- knowledge ap- and that state with the 7-A, state Motor Tariff No. carrier is proval of the Federal Government.27 entitled to recover on the basis of the proper attempting In to arrive at regularly published rates, as established charges invalid defective and under the law, applicable to the Quotation 29, parties both referred question, original as shown in the Kentucky regularly published intrastate petitions. and amended Comptroller Gen- tariff schedules. Finally, urges defendant it, misapplied Under eral it. used but estopped higher is to claim rates than Kentucky the col- laws of may computed those which lection the carrier of the application Quota- strict of and under legally approved published tariff and tion Government, because the as a right rather is matter of but rates not a shipper, was entitled to assume that the obligation imposed law an as complied Kentucky carrier had with pub- contract, rate so quoting points the rates. It also out by law in the same lished is established totally ignorant that it Kentucky way in which a rate is established requirements Kentucky ap- as to the the Interstate interstate commerce under proved published rates, and that if Commerce Act. it had legal known what the motor car- all of this Under circumstances might rier rates were it have decided to opinion that there was case we are of the ship rail. What its cost would have express an been if shipped by it had railroad, in- Kentucky highways over be- services cluding hauling loading, we do not solely state, points tween within the know. But we think this is immaterial. lading evidenced bills of attempt did It not ship by rail. parties. think actions of the We it is party Ordinary principles estoppel intended to vio- clear neither making Kentucky per- apply right late law the or do carrier’s to col contract; approved published formance of the that both lect the tariff parties understood and intended that even in cases where the carrier has freight approved knowingly quoted illegally lawful under an low rate shipper, through should and tariffs statutes in this case Quo- apply, parties’ contracting officer, use of that the authorized has- inno cently quotation, which had not filed tation been with relied on such without approved by Kentucky Regulatory inquiry investigation, or to its later (Kentucky Department Commission In detriment. Louisville & Nashville Transportation) Motor was due to the Iron Railroad Co. v. Central & Coal ignorance positive mutual requirements law. It held that no the Court act omission Casualty Reciprocal exclusively Ex Tucker v. or as tion intrastate trans F.Supp. 383, change, D.C., portation, must, express court the carrier carry provisions 202(b) if a carrier desires to Section held of the Mo transportation, Act, comply whether in Carrier on interstate tor with the valid transporta . regulations its interstate of the state connection commissions 236 Renstrom, In Union except of limita- Transfer Co. v. carrier, statute

of a the 1949, 326, 383, 151 in tions, preclude from en- Neb. estop 37 N.W.2d can or volving carriage by forcing amount a for motor payment full ignorance vehicle, legally shipper. held that In Baldwin court due 478, 485, shipper required Milling Co., of the rates 307 U.S. v. Scott estop prevent 1409, law cannot or the carrier 59 S.Ct. collecting legal The rates. said: court “ court held the reason for rule that * * * equitable considera- rights is that the and duties of the car justify may fail- not serve tions prescribed by shipper rier and Fed collect, reten- of a carrier to ure Act, Motor Carrier the Interstate eral of, any part law- shipper tion Act, and state enact Commerce similar charges.” ful tariff good ments, public, to are for Mills, In Steele v. General against protect public secret rebates 67 91 the car- discriminations, for and rather than rier was allowed to recover the difference enrichment of either the carrier legal published tariff, between under shipper expense others, law, Texas and the lower rate contained direct or evasion of indirect in the contract. The held that Court rights and duties either is ex insofar as for an the contract called pressly prohibited by regulatory acts. illegal rate, it was void and that Keystone See also Davis v. &Steel Wire estopped rely carrier was not on the Co., 47; Ill. 317 148 N.E. Loveless tariff, State Commission’s in order to Mfg. Roadway Exp., D.C., Co. v. published recover on basis of F.Supp. 809; Pipe Bernstein Bros. & duty tariff. The held Mach. Co. v. Denver & R. G. R. W. legal pay the rate was not a matter Cir., 193 F.2d 441. private obligation shipper between Kentucky The fact that under law the duty public carrier but was a of a nature. Quotation reduced rates contained in By-Products Chemical & In Tobacco might approved, proper ap- have been if Ass’n, 1939, Corp. D. F. T. G. v. Western plication made, by Kentucky had been Ky. the State 133 S.W.2d Kentucky authorities under holding of the a appellate reversed court law, posi- does not aid the Government’s car- had denied the lower court tion since such reduced rates ground right to recover rier approved ap- fact and without such appellate noted estoppel. court proval legally published tariff Kentucky Con- 214 of the that Section type shipment this became preferential prohibited stitution contract, binding on both carrier and that Sec- railroads tracts shipper. We do not see how such Kentucky a com- Statutes 817 of the tion (Quotation 29) rate No. could have been giving preferential rate mon carrier approved approved pub- in face of the unjust guilty of discrimination. lished tariff and the statute. a contract then held that The court Plaintiff is entitled to recover on the published tariff was con- less than Kentucky basis of the Intra- illegal, policy trary public 7-A, Motor Tariff No. at the state rate knowledge shipper’s of the fact pounds per of 204 cents hundred on all obtaining preference he was Knox, to Ft. and the immaterial, both the carrier and since per pounds ship- 266 cents hundred on all knowledge charged shipper with are Morganfield. ments to prevailing Entry judgment freight suspended with the will rates on file Chicago pending See also a determination Commission. the General Railroad Accounting Kirby, precise R. Co. v. Officeof sums Alton R. due & original 56 L.Ed. 1033. under its and amended opin- held liable under Act. There the Tucker petitions, in accordance nothing it, prohibits ion. in that Act that involving and in no case facts similar to alleged counterclaim Defendant’s pro- those alleged this case do we find such a overpayments of amounts bills hibition. covered it on due original amend lading, listed majority opin- The cases cited in the on defendant’s petitions based ed ion deal with unauthorized contracts or Quotation is dis interpretation sought spell cases where is it out inter the correct missed. Decision act, contract a tortious or where appli Quotation 29 and its pretation of negative 7-A, the facts an intention to enter No. is tariff cation to unnecessary, sought in view of our de into rendered the contract to be enforced. judg is entitled cision that This case falls into no one of these the basis ment on classes. In all the cases which the con tariff rates common carrier motor Supreme Court has said that we have Tariff and Southern tained Central jurisdiction judgment no to enter a on a 7-A. No. implied law, contract there was either It is so ordered. negation of the contract asserted or authority lack of or a tort. JONES, Judge, Chief concurs. presented Here we are with a dif- problem: question ferent of our Judge WHITAKER, (concurring). authority unauthorized, to set aside an I think the defendant liable indeed, illegal, an contract and to enforce rates fixed law and only contract which the law au- regulations, jurisdic- and that we have This, think, thorized. I we have the judgment accordingly. tion to render power to do. contracting Depart The officer for the Certainly power we have no less to do Army authority had to en this than we have to set aside a con- ter into a contract for the fact, mutual tract mistake of and to ammunition, this and at fixed rates enforce the contract which we find the Indeed, State law. the extent of his au parties they would have made had known thority agreeing authority the facts. Our to do this is pay was to the rates fixed recognized. well Storage Sutcliffe & law, less, State no and no more for it Co., States, Warehouse Inc. v. United 112 presumed cannot be that he was au F.Supp. 590, 297, 304, 125 Ct.Cl. thorized law, to violate the Federal or cited; cases there Engineering Harrison State. Nor empowered was the carrier Corp. & Construction States, v. United to enter carry into a contract F.Supp. goods 68 205; rate, at a Ct.Cl. Peter lesser without consent Kiewit Sons’ States, v. United State. F.Supp. 165, 517; 109 Ct.Cl. Poirier & actually The contract entered into was Corp. McLane States, Ct.Cl., United unauthorized; it was entered into F.Supp. 209. ignorance of State law and not with disregarding purpose it. We implied have held that We is an must, therefore, impute an intention to condition contracts “neither only to enter into the party anything will do they tract for rates were authorized to prevent performance thereof (cid:127)enter into. party delay other or that will hinder or performance.” George Whether him in its be denominated a con- A. implied law, States, tract in fact or in Fuller Co. v. United F.Supp it is one 409, 411, which the United 108 Ct.Cl. States can be 94. Supreme there held Court has re POMERENKE. keep implied leased is an No. 50817. although premises repair, is no there Court, United States District in the lease. such covenant E. D. New York. Bostwick, 53, 24 L.Ed. 94 U.S. States v. 21,May of New 65. It held in Standard Oil Co. Jersey v. United that there pay implied interest on policies, where Risk Insurance

War expressly provide.

policies so did not im-

Many of enforcement other cases might in which

plied cited be contracts contract, imputes not the parties.

language or the acts we must set aside

In case was unlaw- it entered into because

tract having express

ful; then, no us, imply that must

before we into a lawful contract have entered

would was, they known what the law

had judgment contract. on that

render stated, I

For the reasons concur. Judge

MADDEN, (dissenting). against

The court’s decision enforces upon a claim founded

the United States Kentucky. I of the State

a statute not consent- States has

think the United agree I a claim. sued

ed to be of car- that the contract with riage court Kentucky law, subject agreed in the contract

that the illegal Kentucky law. If had become aware

the carrier illegality performed the car- before perform,

riage, have refused to it could United States could have suc-

cessfully of contract. sued it breach v. Oklahoma Gas &

United States Cir., 297 F. 575.

Electric sense, States was under a duty prescribed

legal pay the rates duty was, think, law, I but it obligation imperfect because the not consented to has

United States was of the violation. It for its

sued against all claims nature as same were before establish- court. of this

Case Details

Case Name: Hughes Transp., Inc. v. United States

Court Name: United States Court of Claims

Date Published: May 4, 1954

Citation: 121 F. Supp. 212

Docket Number: 525-52

Court Abbreviation: Ct. Cl.