22 F.2d 500 | 2d Cir. | 1927
The question seems to ns answered by Dupont De Nemours v. Davis, 264 U. S. 456, 44 S. Ct. 364, 68 L. Ed. 788, and Davis v. Cohen & Co., 268 U. S. 688, 45 S. Ct. 633, 69 L. Ed. 1129. The first case hold that a claim by the Director General for demurrage was a claim in the right of the United States, and was barred by no statute of limitations. It cannot be true at once that a claim for demurrage is in the right of the United States,,and a claim for the repayment of such demurrage is not against the United States. The second ease, Davis v. Cohen, held that section 206(a) of the Transportation Act (49 USCA § 74[a]; Comp. St. § 10071¼cc[a]) constituted the only consent given by the United States to suits against itself arising from federal control after February 28, 1920. If so, the section is not, properly speaking, a statute of limitations at all, and mutual mistake does not toll its operation. Such statutes are strictly confined to their language, Finn v. U. S., 123 U. S. 227, 232, 233, 8 S. Ct. 82, 31 L. Ed. 128; Schillinger v. U. S., 155 U. S. 163, 166, 15 S. Ct. 85, 39 L. Ed. 108; U. S. ex rel. Rauch v. Davis, 56 App. D. C. 46, 8 F.(2d) 907. Congress meant final liquidation of the accounts to take place “as soon as practicable” (section 202 [49 USCA § 72; Comp. St. § 10071¼b]), and to load the scales against all, however blameless, who failed to get beneath the wire.
The motion to dismiss should have been granted; it is unnecessary to discuss the merits.
Judgment affirmed.