years prior to the date of claim therefor, nor shall increased. compensation be awarded to revert back more than one year prior to the date therefor.8

"That the Act approved January twenty-first, nineteen hundred and fourteen, authorizing the Postmaster General to adjust. certain claims of postmasters for loss by burglary, fire or other unavoidable casualty, be so amended as to include United States. War Savings Certificate Stamps, United States Government Thrift Stamps, War tax revenue stamps, and funds received from the sale of such stamps: Provided, that this Act shall not embrace any claim for losses as aforesaid which accrued prior to September twenty-fourth, nineteen hundred and seventeen, and all such claims must be presented, within six months from the time the loss occurred."9

Statutes creating claims against the United States usually also prescribe of limitation for suits thereunder.10

§ 180g. Statute of limitations to Interstate Commerce cases. By the Interstate Commerce Act as provides concerning claims thereunder against Railroad Companies: "All actions at law by carriers subject to this Act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, unless the carrier, after the expiration. of such two years or within ninety days before such expiration begins an action for recovery of charges in respect of the same service in which case such period for two years shall be extended to and including ninety days from the time such ac

8 § 310, added, October 6, 1917, ch. 105, § 2, 40 St. at L. 408, Comp. St. § 514t. E. G. The Indian Depredations Act of March 3, 1891, 26 St. at L. 851, § 2, 2 Fed. St. Ann. 91, Comp. St. 758, Pierce's Fed. Code, $7845; The French Spoliations Act of January 20, 1885, 23 St. at L. 283, § 6, 2 Fed. St. Ann. 88, Pierce's Fed. Code, § 7863.

9 Act of July 2, 1918, c. 117, § 2, 40 St. at L., Comp. St. § 7211a. 10 The Acts authorizing claims for Fed. Prac. Vol. I-65

loss of horses and equipments during the Civil War approved June 22, 1874; ch. 395, § 2, 18 St. at L. 193, Comp. St. 6391; Jan. 9, 1883, ch. 15, § 1, 22 St. at L. 401, Comp. St. §§ 6393, 6394. August 13, 1888, ch. 868, § 2, 25 St. at L. 437, Comp. St. § 6395. For collecting, drilling, or organizing volunteers for the Civil War, U. R. S., § 3489, Comp St. § 6402. For loss and destruction of property belonging to officers and enlisted men in the Civil War, Act of March 3, 1885, ch. 335, 23 St.

tion by the carrier is begun. In either case the cause of action in respect of a shipment of property shall, for the purpose of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. A petition for the enforcement of an order for the payment of money shall be filed in the District Court or State court within one year from the date of the order, and not after."'1

This limitation applies to actions to recover damages for a discrimination against a shipper. Such acts are not subject to the statute regulating the time for suits to enforce penalties.3 This statute need not be pleaded by the defendant.*

The State statute applies to an action by a carrier to recover unpaid freight on interstate shipments, which when there is a bill of lading must be presumed to be based on such bill and to an action by a carrier to recover the amount of an under charge upon such a shipment.7

§ 180h. Statute of limitations against causes of action arising while carriers were under Federal control.

By the Act of February 28, 1920: "Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use, or operation by the President of the Railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the Act of August 29, 1916) of such character as prior to the Federal control could have been brought against such carsion Co., 246 U. S. 638. See supra, §§ 33a, 151.

at L. 350, Comp. St. 6403, Act of March 4, 1915, ch. 143, § 1, 38 St. at L. 1077, Comp. St. § 6403a.

§ 180g. 1 Act of Feb. 4, 1887, c. 104, § 16, 24 St. at L. 384, 1901, as amended by Acts of June 29, 1906, c. 3591, § 5, 34 St. at L. 590, June 18, 1910, ch. 309, 36 St. at L. 554, Feb. 28, 1920, $$ 423, 429; Morrisdale Coal Co. v. Penna. R. R. Co., 230 U. S. 304; Meeker & Co. v. Lehigh Valley R. R. Co., 236 U. S. 412, affirming Lehigh Valley R. R. Co. v. Meeker, C. C. A., 211 Fed. 785; A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662, s. c., C. C. A., 195 Fed. 12.

2 U. S. ex rel. Louisville Cement

Co. v. Interstate Commerce Commis

3 Meeker v. Lehigh Valley R. R. Co., 236 U. S. 412, overruling Carter v. New Orleans, C. C. A., 143 Fed. 99.

4 U. S. ex rel. Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638; Missouri Pac. R. R. Co. v. C. Ferguson Sawmill Co., C. C. A., 237 Fed. 483.

5 Chicago & N. W. Ry. Co. v. Zieharth, C. C. A., 245 Fed. 334; N. Y. Cent. R. Co. v. Mutual Orange Distributors, 251 Fed. 230.

6 Ibid.

7 Chicago & N. W. Ry. Co. v. Ziebarth, C. C. A., 245 Fed. 334.

rier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this Act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act, be brought in any court which but for Federal control would have had jurisdiction of the cause of action had it arisen against such carrier."1

§ 180i. Statute of limitations to suits to enforce orders of the United States Shipping Board.

The Act of Sept. 7, 1916, which created the United States Shipping Board, provides that "No petition or suit for the enforcement of an order for the payment of money shall be maintained unless filed within one year from the date of the order."' la

§ 180j. The Employers' Liability Act which applies to common carriers by railroads, interstate or foreign commerce provides: "No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued." 1

§ 180k. Statute of limitations to suits under Internal Revenue Laws. "No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of Internal Revenue, according to the provisions of law in that revenue, according to the provisions of law in that regard, and the regu lations of the Secretary of the Treasury established in pursuance thereof, and a decision of the commissioner has been had therein: Provided, That if such decision is delayed more than six months from the date of such appeal, then the said suit may be broug without first having a decision of the commissioner at any time within the period limited in the next section."1

§ 180h. 1 Act of Feb. 28, 1920, § 206.

§ 180i. 1a Act of Sept. 7, 1916, Ch. 451, § 3, 39 St. at L. 737, Comp. St. § 81460.

$ 180j. 1 Act of April 22, 1908, Ch. 149, § 6, 35 St. at L. 66, amended April 5, 1910, Ch. 143,

§ 1, 36 St. at L. 291.

§ 180k. 1 U. S. R. S., § 3226,

"No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected shall be maintained in any court, unless the same is brought within two years next after the cause of action accrued: Provided, That actions for such claims which accrued prior to June sixth, eighteen hundred and seventy-two, may be brought within one year from said date; and that where any such claim was pending before the commissioner as provided in the preceding section, an action which was already barred by any statute on the said date shall be revived by this section." 2

This statute applies to taxes upon inheritance, excise taxes * income taxes under the Act of 1913,5 and to other taxes which are not imposed upon imports. Such a suit is brought when the summons is issued although it is served after the period has expired. When Congress has directed a refund of taxes previously in the Court of Claims will govern. It does not apply to defense of illegality or irregularity in the assessment set up in a suit by the government to collect the tax, but if the claims were presented to the commissioner before the enactment they need not be again presented. 10 The statute does not require an appeal to the commissioner before an action against the collector for trespass in collecting the tax.11

9

When an appeal is taken from the assessment, there is no need of a second appeal, after the payment,12 but if a second

amended Act of Feb. 27, 1877, Ch.

69, § 1, 19 St. at L. 248, Comp. St. $ 5949.

2 U. S. R. S., § 3227, Comp. St. § 5950.

3 Rand v. U. S., 249 U. S. 503. 4 Public Service El. Co. v. Herold, 227 Fed. 491.

5 Dodge v. Osborn, 240 U. S. 118, 36 Sup. Ct. 275.

6 N. Y. Mail & Newspaper Transp. Co. v. Anderson, 234 Fed. 590.

7 Mill Creek & Minehill Nav. &

R. Co. v. U. S., 246 Fed. 1013. 8 Sage v. U. S., 250 U. S. 33.

9 Clinkenbard v. U. S., 21 Wallace 68, § 7, 22 L. ed. 477.

10 Ibid.

11 Erskine v. Hohback, 14 Wall. 613; 20 Fed. 745. But see Coblens v. Able, Fed. Cas. 2926.

12 San Francisco Savings & Loans Society v. Cary, Fed. Cas. 12, 317; Schwarzchild & Sulzberger Co. v. Rucher, 143 Fed. 656; Weaver v. Ewers, C. C. A., 195 Fed. 247, affirming 182 Fed. 713. Contra, Hastings v. Herold, 184 Fed. 759, 240 U. S. 118.

assessment is made the statute runs from the decision for such new assessment unless a second appeal is taken.13 Delivery of an appeal to the collector for transmission to the Commissioner as required by the regulations of the Treasury Department is the due making of a presentation of the appeal.14 A written application to the Commissioner for the refund of money spent in buying revenue stamps is not equivalent to taking such an appeal.15

The decision which starts the running of the time is a decision on the merits. A dismissal of an appeal for the irregularity of the papers does not start the running of the time, if a second appeal is duly taken.16 When the decision is delayed, the taxpayer has the option to sue at once or to await the decision.17 It has been held that he may then await more than two years and six months after taking his appeal if the decision is delayed during such time; 18 but there are decisions to the contrary.19

This Act is not merely a Statute of Limitations but it prescribes a condition precedent, which is not waived by the defendant's failure to plead it.20 Where an appeal on file in the Treasury Department was "endorsed, examined, and rejected Sept. 8, 1868, by J. Dilled," and it did not appear which office he held or that his ruling had not been accepted by the commissioner; it was held by the Court of Claims that there was no proof of any decision.21

§ 180 1. Statute of limitations to suits to recover usury. "The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest

18 Cheatham v. U. S., 92 U. S. 85, 35 L. ed. 561, Comp. St., § 5949. 14 U. S. v. Real Estate Savings Bank, 104 U. S. 728, 734, 26 L. ed. 908.

15 Chesebrough v. U. S., 192 U. S. 253, 48 L. ed. 432, 24 Sup. Ct. 262, Comp. St. § 5949.

16 James v. Hicks, 110 U. S. 272, 4 Sup. Ct. 6, 28 L. ed. 144, Comp. St. § 5949.

17 James v. Hicks, 110 U. S. 272, 4 Sup. Ct. 6, 28 L. ed. 144, affirming

Hicks v. James' Adm'x, 48 Fed. 542; Merck v. Treat, C. C. A., 174 Fed. 388.

18 Merck v. Treat, C. C. A., 174 Fed. 388.

19 Christie Str. Commission Co. v. U. S., 126 Fed. 991, s. c., 129 Fed. 506, affirming D. C. C. A., 136 Fed. 656; Schwarzchild & Sulzberger Co. v. Rucher, 143 Fed. 656.

20 Dubarry v. Dunn, 162 Fed. 961. 21 Lauer v. U. S., 5 Ct. Cl. 447. See Hubbard v. Kelly, 8 W. Va. 46.