FEDERAL
vol. 50·
CoPP. ". LoUISVILLE & N. Ry. Co. (CirCUit Oourt, E. D. LowLstana. April 21, 1899.) L LnnTATJO'l(!':"'.!.l'PLICATJON OP BTATII
8uTriTJls. Under .· 5t;. U. S. § 721, when congr"ss create. a new right of &Otlon, without providing any limitation thereto, the st.a.te statutes of limitations apply, and are binding upon the United States courts. .' ,
.. B.um-'1NTERST.lTIII OOMMERCE-SUIT'POR DISCRIMINATION.
Tll.e right of action created by the interstate commerce act, (24 St. p. 380, §§ 8, 9,) In favor of the party against whOm discrimination is made in the charges for the transportation of merchandise, comeBwithin Rev. Civil Code art. 3586, prOViding .limitation of ,one year to actions for resultmg from quasi o:t!enses.
At Action by Frank,!,. Copp against the Louisville & Nashville Railway Company to recover an amount paid for freight in excess of that pall! by others for similar service. New trial,granted· .B. R. Fornian, for plaintiff. . ' Bayne. & for defendant.
J Jldge. -The plaintiff has brought a suit under the act .of the Commero6;Act," (24 St. U. S. p. 380, §§ 3, 9,) to recover the amount of freight paid by him to the defendant iQ eX{;ess of that paidtolt \ly others for similar service. An exceptiop ,file4 by the . interposing the plea of the limitst.it;lp Qf prescription in force unde.rtlw; st;atuteof the. state of Louisiana. The upon is Rev. Civil,:Code, art. 3586, which provides that "the actions are alsl;) prescribed by one year: That for injurious words, ,whether verbal or written, and that for damages caused by animals, or resll}ting from offenses Qrquam. offenses." It is claimed by the .defendant that this is an actipn for aqu<Ui offense, alld it is controlled by the state statute. Code Prac. art. 28, declares that "personal actions are grounded on four causes: Contracts, quam. contracts, offenses, and quasi offensesi" and article. 32 further defines personal, actions arising from to be' when .the grouo.d of action is the injury dODe to an· other by, one of those faults which are not considered 8S real crimes or Qfl'enses. It has not been.questioned,and 1 think cannot be questioned, that the fault complained of by,.the plaintiff is included within the nition of "quasi offenses." , ,
copp
'/I;
LOUISVILLE & N. RY. CO.
165
The question is whether this state statute of limitations applies to this action. The action arises from a law of congress against discrimination in the charges for the transportation of merchandise. Where there has been discrimination, congress has created a right of action in favor of the party against whom it has been made for the excess of the charge collected from him, as compared with that collected from others. It is to be observed that in the act of congress there is no limitation as to time, and that, unless the state statute applies, there is no limitation;' un the other hand, the action is authorized in case of discrimination, with or without damage; and to that extent it is a statute in the of a statutory provision for an action to protect the interests of the lie, i. 6., to secure a uniform rate of charge for the trapsportation of merchandise by common carriers, and giving an action even in case the party discriminated against had paid no more than the value of the service of transportation. Nevertheless it is a purely civil action, and, by denomination or definition, is within the meaning of the state statute of limita, tions.. question is whether section 721 of the United States Revised Statutes, being a portion of section 34 ofthe judiciary act of September 24, 1789, includes the limitation or prescription for actions known as" quasi. offenses" contained in the Lousiana statute. In Angell on Limitations, § 24, the rule iEt laid down as follows: "I.Tnder the 34t,h section of the judiciary act of 1789, the acts of limitations of the several stRtes, where no special provision has been made by congress,. form a rille of decision in the courts onhe United States; and the same effect is given to them as is given to tbem in the state courts.". This passage from Angell is adopted by the supreme court as a correct statement of the law in Hanger v. Abbott, 6 WalI., at page 537. In Townsend v. Jemison, 9 How. 414, the supreme court quote appro:vingly that in the courts of the United States the law of the former govern!!,' and say that "statutes of limitation, unless the plaintiff can bring self'within their exceptions, appertain ad tempuS et modum actionis i"!stitu-; endx, and not ad valorem contractus." In McIver v. Ragan, 2 Wheat. at page 29, Chief Justice'MARSHAL says: "It would be going far to add to these exceptions;" i. e., those exceptions made by the legislature. In McCluny v. Silliman, 3 Pet. 270, where the act of congress made it the duty of the registers of the land-office to enter, upon application, certain lands, and the action was brought against a register for not having entered lands upon the proper application of the plaintiff,the action being an action upon the case, and the statute of Ohio (the suit was brought in the United States circuit court in the district of Ohio) limited to six years all actions upon the case,-the supreme court that the plea setting up the state statute of limitations was a good plea; In that case one of the errors assigned was"That no statute of limitations of the state of Ohio, then in force, is pleadable in an action upon the case brougbt by a citizen of one state against a citizen of another, in the circuit court of the United States. for malfeasance or nonfeasance in office in a ministerial officer of the general government, and especially when the plaintiff's rights accrued to him under a law of eongress...
166
FiilDERAL REPORTER,
vol.
: In reply ,to thia objeetibn, the court, at page 277, say:
.,
·,.WherethestatnteisDohestricted to particular causes of actton. but protbeac:tion.by denomination. shall be barred. if not 'Y.i,thipa limited thl).e. every cause for action may be prosecuted is', ,within the statute;" '
InR088v. Duval, 13 Pet. 45, the supreme court apply the statute of lim.iu\tions of the state of Virginia to judgments rendered in the United State8:cirouitcourts. Atpage 60 the court say: ,"If this, then, be a limiWtion law, itisa rnle of property; and. under the tbirty,foll.rth section of, the3udiciary act; Isa rule of decision for the courts of the Stales."
11lM''ldtigan 1118. BanTev. Eldred, 130 U. S. 693, 9 Sup. Ct. Rep. 690, itis reiterated, as the result of all the decisions of the supreme court, that the statutes of limitations were laws of the several states, and under -the thirty-fourth section of the act of 1789, in the absence of special provision by congress, were binding upon the courts of the United States, as they would be upon the courts of the state in which the United States courts In this case the supreme court of this state has held that the Unlted States circuit courts had exclusive juris. diction' over the actions arising under the act of congre..Cls under which this action is brought. But I do not see that the exclusive jurisdiction of the United States courts affects the question presented here; for, if the statute would control the matter in .the state courts in case they had jurisdiction, the statuteis. nevertheless the rule of decision. The binding force of the state statute of limitations upon the United States courts in cases where they have jurisdiction .comes from section 34 of the judiciary act, and the statute made a rUle of decision, in cases to which it applies, equally whether the state courts also have jurisdiction or not. The statute becomes a rule of property in the United States courts, if it would include a similar action in the state court. My conclusion is that the statute of limitatiQn of the state applies to this case. The motion for a new .trial will therefore be granted.
RAY t1. UNITED STATES.
(DI8tr!et C()'lJII't. D. Indiana. AprU 19, 18119.) I. CLAIMS AGUNST .UNITBD STATES-LIMITATIONS-ERRONEOUS TUJ.'l'tON-RBOLllU '1'ION-'1'RUST8. '
In 1872 a statement made by the comptroller of the treasury showed that a certain amount had been erroneously deducted as income tax .from the salary of a United States district judge between 1864 and 1869. In 1875 a draft was issued by . the government for the payment of the claim, but, remaining unclaimed, it was in 1887 covered into the treasury. No demand of payment was ever made until 1891. and payment was then refused. HeM, that after the draft was issued the government held the fund in the nature of a trust, and that the six-years limitation as to claims cognizable by the court of claims. did not begin to run until the date of the dmand.