No. 54 | 2d Cir. | Nov 14, 1927
The question seems to ns answered by Dupont De Nemours v. Davis, 264 U.S. 456" date_filed="1924-04-07" court="SCOTUS" case_name="E. I. Dupont De Nemours & Co. 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" date_filed="1925-06-08" court="SCOTUS" case_name="Davis v. L. L. Cohen & Co.">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" date_filed="1887-10-31" court="SCOTUS" case_name="Finn v. United States">123 U. S. 227, 232, 233, 8 S. Ct. 82" date_filed="1887-10-31" court="SCOTUS" case_name="Finn v. United States">8 S. Ct. 82, 31 L. Ed. 128; Schillinger v. U. S., 155 U.S. 163" date_filed="1894-11-19" court="SCOTUS" case_name="Schillinger v. United States">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" date_filed="1925-11-02" court="D.C. Cir." case_name="United States ex rel. Rauch v. Davis">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.