
    NEW YORK AND NEW BRUNSWICK AUTO EXPRESS COMPANY, Inc. v. The UNITED STATES.
    No. 519-23.
    United States Court of Claims.
    Nov. 30, 1954.
    Bryce Rea, Jr., Washington, D. C., for plaintiff. Edgar Watkins and Peter T. Beardsley, Washington, D. C., on the briefs.
    Lawrence S. Smith, Washington, D. C., with whom was Asst. Atty. Gen. Warren E. Burger, for defendant.
    Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.
   PER CURIAM.

The plaintiff was the delivering carrier in the transportation, by truck, of wool cloth from Guild, New Hampshire, to Philadelphia, Pennsylvania, for the Department of the Army. The plaintiff collected freight charges of $1.28 per hundred pounds, the applicable class rate stipulated in the Middle Atlantic States Motor Carrier Conference Tariff No. 14-E, MF-I. C. C. No. A250. Thereafter the General Accounting Office demanded the repayment by the plaintiff of $81.87, which it claimed, represented an overcharge made by the plaintiff on the shipments. The plaintiff made the repayment, but under protest, and demanded a refund of the payment. No refund was made and this suit was brought.

The Government says that the lawful rate was $1.08 per hundred pounds. It says that there was a commodity rate from Lebanon, New Hampshire, a point farther from Philadelphia than Guild, of $1.08, and that it is prima facie unreasonable, and thus unlawful, to charge more for a shorter haul than for a longer haul over the same route. By statute, any unreasonable charge by a common carrier is unlawful.

On June 29, 1954, the Government filed a complaint with the Interstate Commerce Commission alleging that the rate here involved was unlawful, for the reason given above. The Commission ordered the plaintiff to respond to the complaint by September 27,1954. The plaintiff made no response. On November 2, 1954, the Commission decided that the rate collected by the plaintiff was unjust and unreasonable, and that the reasonable rate was $1.08. See United States of America v. New York and New Brunswick Auto Express Co., Inc., et al., No. MC-C-1662, decided November 2, 1954.

The question of the reasonableness of rates of carriers in interstate commerce is a question for decision by the Interstate Commerce Commission. El Dorado Oil Works v. United States, 328 U.S. 12, 19, 66 S.Ct. 843, 90 L.Ed. 1053. The Commission having decided that $1.08 was the reasonable rate, and the plaintiff having collected and retained that amount, it is not entitled to recover more.

The plaintiff’s petition is dismissed. Defendant’s conditional counterclaim is also dismissed.

It is so ordered.  