B-136952, OCTOBER 3, 1958, 38 COMP. GEN. 266

B-136952, OCTOBER 3, 1958, 38 COMP. GEN. 266

BRIDGES - CONSTRUCTION - TOLL REIMPOSITION PROHIBITION THE PROHIBITION IN 23 U.S.C. 9B AGAINST REIMPOSITION OF TOLLS ON BRIDGES CONSTRUCTED WITH FEDERAL-AID HIGHWAY FUNDS AFTER THE CONSTRUCTION COST HAS BEEN REPAID PRECLUDES A STATE HIGHWAY COMMISSION FROM MAKING A REFUND OR TRANSFER TO ANOTHER ELIGIBLE HIGHWAY PROJECT OF A LIKE AMOUNT TO BE RELIEVED OF THE STATUTORY PROHIBITION SO THAT BRIDGE TOLLS MAY BE REIMPOSED TO ASSIST IN THE FINANCING OF AN ADDITIONAL BRIDGE. MODIFIED BY 38 COMP. GEN. 495 ON THE BASIS OF ADDITIONAL INFORMATION.

TO THE SECRETARY OF COMMERCE, OCTOBER 3, 1958:

THE LETTER OF JULY 29, 1958, WITH ENCLOSURES, FROM HONORABLE GEO. T. MOORE, ASSISTANT SECRETARY, REQUESTS A RULING AS TO WHETHER THERE IS LEGAL AUTHORITY FOR ACCEPTING A REFUND FROM THE WASHINGTON STATE HIGHWAY COMMISSION COVERING THE AMOUNT OF FEDERAL-AID HIGHWAY FUNDS PREVIOUSLY EXPENDED ON A FEDERAL-AID HIGHWAY PROJECT AND RELIEVING THE STATE OF WASHINGTON FROM THE OBLIGATION TO COMPLY WITH THE STATUTORY CONDITIONS UNDER WHICH THE PROJECT WAS APPROVED.

IT IS STATED THAT APPROXIMATELY $34,000 OF FEDERAL-AID HIGHWAY FUNDS WERE EXPENDED IN THE CONSTRUCTION OF THE APPROACHES TO THE EXISTING FLOATING BRIDGE ON LAKE WASHINGTON, SEATTLE, WASHINGTON, WHICH WAS OPENED AS A TOLL BRIDGE IN JULY 1940. FEDERAL AID WAS EXTENDED THEREFOR PURSUANT TO SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT, 48 STAT. 204, 23 U.S.C. 9B. SAID SECTION MADE PUBLICLY OWNED TOLL BRIDGES OR THE APPROACHES THERETO, OPERATED BY THE HIGHWAY DEPARTMENT OF A STATE, ELIGIBLE FOR AID UNDER THE FEDERAL HIGHWAY ACT, AS AMENDED AND SUPPLEMENTED, SUBJECT TO THE CONDITION THAT "* * * ALL TOLLS RECEIVED FROM THE OPERATION OF ANY SUCH BRIDGE, LESS THE ACTUAL COST OF OPERATION AND MAINTENANCE, SHALL BE APPLIED TO THE REPAYMENT OF THE COST OF ITS CONSTRUCTION OR ACQUISITION, AND WHEN THE COST OF ITS CONSTRUCTION OR ACQUISITION SHALL HAVE BEEN REPAID IN FULL, SUCH BRIDGE THEREAFTER SHALL BE MAINTAINED AND OPERATED AS A FREE BRIDGE.' THE COST OF THE CONSTRUCTION OF THE BRIDGE HAS BEEN REPAID IN FULL, AND THE BRIDGE HAS BEEN OPERATED AS A FREE BRIDGE IN ACCORDANCE WITH THAT CONDITION SINCE JULY 1949.

THE LETTER OF JULY 29 AND ITS ENCLOSURES INDICATE THAT THE TRAFFIC OVER THE BRIDGE HAS INCREASED TO THE POINT WHERE IT IS NECESSARY TO CONSTRUCT AN ADDITIONAL BRIDGE. THE WASHINGTON STATE HIGHWAY COMMISSION PLANS TO OPERATE THE ADDITIONAL BRIDGE AS A TOLL BRIDGE IN ORDER TO PAY OFF THE BONDS WHICH WILL BE SOLD TO FINANCE ITS CONSTRUCTION. HOWEVER, IT HAS BEEN DETERMINED THAT THE TOLLS FROM THE NEW BRIDGE ALONE WOULD BE INADEQUATE TO LIQUIDATE THE COST THEREOF IN A REASONABLE TIME. HENCE, THE COMMISSION DESIRES TO REIMPOSE TOLLS UPON THE EXISTING BRIDGE TO ASSIST IN PAYING OFF THE COST OF THE NEW BRIDGE. SINCE SUCH REIMPOSITION OF TOLLS IS PROHIBITED BY SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT AS QUOTED ABOVE BY REASON OF THE EXPENDITURE OF FEDERAL-AID HIGHWAY FUNDS ON THE APPROACHES TO THE EXISTING BRIDGE, THE COMMISSION WISHES TO REFUND TO THE GOVERNMENT OR TRANSFER TO ANOTHER ELIGIBLE FEDERAL-AID HIGHWAY PROJECT IN THE STATE OF WASHINGTON THE AMOUNT OF SUCH FUNDS SO EXPENDED AND BE RELIEVED OF THE STATUTORY CONDITIONS CITED.

THERE IS NOTHING IN THE FEDERAL HIGHWAY ACT, 42 STAT. 212, 23 U.S.C. 1, OR ACTS AMENDATORY THEREOF OF SUPPLEMENTARY THERETO WHICH WOULD AUTHORIZE THE REFUND OR TRANSFER OF FUNDS EXPENDED IN ACCORDANCE THEREWITH AND THE RELEASE OF THE CONDITIONS STIPULATED THEREIN. NEITHER HAS ANY OTHER ACT BEEN FOUND WHICH WOULD AUTHORIZE SUCH REFUND OR TRANSFER AND THE RELEASE OF THE STATUTORY CONDITIONS. IT IS THE CLEAR INTENT OF THE FEDERAL HIGHWAY ACT AS AMENDED AND SUPPLEMENTED THAT ROADS, ETC., CONSTRUCTED THEREUNDER SHALL BE TOLL FREE. THE ONLY GENERAL EXCEPTION THERETO IS THAT PERMITTING TEMPORARY TOLLS ON CERTAIN BRIDGES AND TUNNELS UNTIL THE COST THEREOF SHALL BE REPAID.

IT IS NOTED THAT A BILL, S.2261, WAS INTRODUCED IN THE FIRST SESSION OF THE 84TH CONGRESS PROPOSING TO PERMIT THE CHARGING OF TOLLS ON ANY SECTION OF HIGHWAY CONSTRUCTED UNDER THE PROVISIONS OF THE FEDERAL-AID ROAD ACT OF JULY 11, 1916, 39 STAT. 355, AS AMENDED AND SUPPLEMENTED, UPON REPAYMENT OF THE FEDERAL-AID FUNDS EXPENDED THEREON. THIS BILL WAS NOT ENACTED INTO LAW. HOWEVER, THERE HAS BEEN ENACTED PUBLIC LAW 646 OF THE 81ST CONGRESS, 64 STAT. 403, AUTHORIZING THE TRANSFER OF FEDERAL-AID HIGHWAY FUNDS WHICH HAD BEEN ALLOCATED AND PARTIALLY EXPENDED UPON A ROAD WHICH WAS SUBSEQUENTLY PLANNED TO BE INCLUDED IN THE NEW JERSEY TURNPIKE THEN UNDER CONSTRUCTION IN ORDER TO PERMIT THE CHARGING OF TOLLS ON THE SAID TURNPIKE. IT WAS STATED IN SENATE REPORT NO. 2032, 81ST CONGRESS, ON H.R. 6971, WHICH BECAME PUBLIC LAW 646, THAT SUCH LEGISLATION WAS NECESSARY TO PERMIT THE TURNPIKE AUTHORITY TO REFUND TO THE STATE HIGHWAY DEPARTMENT FOR USE ON ANOTHER FEDERAL-AID PROJECT THE FEDERAL-AID FUNDS ALREADY EXPENDED ON THE ROUTE DESIRED FOR INCORPORATION INTO THE TURNPIKE AND TO RELIEVE THE TURNPIKE OF THE PROHIBITION AGAINST CHARGING TOLLS CONTAINED IN THE FEDERAL HIGHWAY ACT. ALSO, THERE HAS BEEN ENACTED SECTION 22 OF THE FEDERAL-AID HIGHWAY ACT OF 1954, PUBLIC LAW 350, 83RD CONGRESS, 68 STAT. 76, WHICH AUTHORIZED THE STATE OF CONNECTICUT TO REPAY TO THE UNITED STATES TREASURY FEDERAL-AID ROAD FUNDS PREVIOUSLY PAID ON A FEDERAL-AID PROJECT SUBSEQUENTLY DESIRED FOR INCORPORATION INTO A TOLL EXPRESSWAY. SECTION 22 STATES THAT REPAYMENT MUST BE MADE BEFORE COLLECTION OF ANY TOLLS ON THE ROAD AND SPECIFICALLY PROVIDES THAT UPON SUCH REPAYMENT THE PROJECT AGREEMENT WOULD BE CANCELED. HOUSE OF REPRESENTATIVES CONFERENCE REPORT NO. 1527, 83RD CONGRESS, ON H.R. 8127, WHICH BECAME THE FEDERAL-AID HIGHWAY ACT OF 1954, INDICATES THAT SECTION 22 WAS NECESSARY TO PERMIT THE REFUND AND THE RELEASE OF THE CONDITION, AND CITED THE EARLIER ACT CONCERNING THE NEW JERSEY TURNPIKE AS A PRECEDENT. SEE ALSO THE SENATE DEBATE ON SECTION 22 ON APRIL 7, 1954, AS APPEARING ON PAGES 4784-4786 OF VOLUME 100, PART 4, OF THE CONGRESSIONAL RECORD.

ALL OF THE ABOVE BILLS WERE PRESENTED TO THE CONGRESS ON THE PREMISE THAT THE REFUND OR TRANSFER OF FEDERAL-AID HIGHWAY FUNDS FOR THE PURPOSE OF RELEASING THE ROAD, ETC., UPON WHICH SUCH FUNDS HAD BEEN EXPENDED FROM THE PROHIBITION AGAINST CHARGING TOLLS CONTAINED IN THE FEDERAL HIGHWAY ACT, AS AMENDED AND SUPPLEMENTED, WAS NOT AUTHORIZED BY THE ACT AND THAT SPECIFIC LEGISLATIVE AUTHORITY THEREFOR WAS REQUIRED. THE ENACTMENT BY THE CONGRESS OF THE TWO STATUTES AUTHORIZING SUCH ACTION IN THE CASES OF THE NEW JERSEY TURNPIKE AND THE CONNECTICUT EXPRESSWAY CLEARLY INDICATES CONGRESSIONAL CONCURRENCE WITH THAT INTERPRETATION OF THE FEDERAL HIGHWAY ACT. LIKEWISE, THE SUBSEQUENT FAILURE TO ENACT S.2261 CLEARLY INDICATES CONGRESSIONAL RELUCTANCE TO AUTHORIZE A GENERAL RELEASE OF FEDERALLY ASSISTED ROADS, ETC., FROM THE PROHIBITION AGAINST CHARGING TOLLS.

HENCE, WE MUST HOLD THAT, IN THE ABSENCE OF THE ENACTMENT OF EITHER SPECIFIC LEGISLATIVE AUTHORIZATION RESPECTING THE BRIDGE HERE INVOLVED, SIMILAR TO PUBLIC LAW 646 OR SECTION 22 OF PUBLIC LAW 350, OR GENERAL LEGISLATIVE AUTHORITY SIMILAR TO S.2261, NO LEGAL AUTHORITY EXISTS FOR THE REFUND OR TRANSFER OF THE FEDERAL-AID HIGHWAY FUNDS PREVIOUSLY EXPENDED ON THE APPROACHES TO THE EXISTING LAKE WASHINGTON BRIDGE AND THE RELEASE OF SAID BRIDGE FROM THE PROHIBITION AGAINST CHARGING TOLLS THEREON AFTER THE REPAYMENT IN FULL OF THE COST OF CONSTRUCTION AS CONTAINED IN SECTION 204 (G) OF THE NATIONAL INDUSTRIAL RECOVERY ACT.