Skip to main content

A-61291, APRIL 24, 1939, 18 COMP. GEN. 806

A-61291 Apr 24, 1939
Jump To:
Skip to Highlights

Highlights

THE PERFORMANCE OF WHICH WAS A SERVICE REQUIRED BY LAW TO BE PERFORMED WITHOUT COMPENSATION. NOTWITHSTANDING THE CORPORATION'S CONTENTION THAT THE CHANGE WAS BECAUSE OF "AESTHETIC CONSIDERATIONS" ALONE. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1. THIS CLAIM WAS THE SUBJECT OF DECISIONS RENDERED OCTOBER 3. WHEREIN YOU WERE INFORMED OF THE REASONS THIS OFFICE MAY NOT APPROVE PAYMENT FROM APPROPRIATED MONEYS OR MODIFY THE SETTLEMENT DISALLOWING THE CLAIM. UPON WHICH YOUR CLAIM IS PREDICATED. ARE SHOWN BY THE RECORDS OF THIS OFFICE TO BE AS FOLLOWS: BY RESOLUTION DATED SEPTEMBER 2. WHILE IT IS STATED IN THE RESOLUTION THAT "IT IS EXPRESSLY UNDERSTOOD THAT THE FOREGOING PRIVILEGE IS A LICENSE MERELY GRANTED UNDER THE PROVISIONS OF CHAPTER 1294H.

View Decision

A-61291, APRIL 24, 1939, 18 COMP. GEN. 806

PUBLIC UTILITIES - RELOCATION OF TELEPHONE LINES - REQUIREMENT BY FEDERAL GOVERNMENT WITHOUT COST REIMBURSEMENT THE RIGHT OF PROPERTY IN THE FRANCHISE GRANTED TO A PUBLIC SERVICE CORPORATION BY A STATE BEING SUBJECT TO THE PARAMOUNT RIGHT OF THE STATE TO REQUIRE COMPLIANCE WITH SUCH REASONABLE RULES, REGULATIONS, OR ORDERS AS TO RESPONSIBLE OFFICIALS MIGHT SEE FIT TO MAKE IN THE REASONABLE EXERCISE OF THE STATE'S POLICE POWER, AND THE UNITED STATES AFTER ACQUISITION OF THE LAND BEING VESTED WITH A POWER ANALOGOUS TO THE POLICE POWER OF THE SEVERAL STATES, NO COMPENSATION MAY BE PAID TO A PUBLIC SERVICE CORPORATION FOR REMOVAL OF ITS OVERHEAD LINES AND PLACING OF THEM BENEATH A HIGHWAY CONSTRUCTED AND MAINTAINED UNDER FEDERAL STATUTORY AUTHORITY NOTWITHSTANDING THE ALLEGATION THAT A PUBLIC OFFICIAL AUTHORIZED THE RELOCATION AT GOVERNMENT EXPENSE, THE RELOCATION OF THE LINES, EVEN THOUGH INVOLVING COLLATERALLY "AESTHETIC CONSIDERATIONS," HAVING BEEN A REASONABLE EXERCISE OF THE RIGHT OF THE FEDERAL GOVERNMENT IN THE SAFEGUARDING OF THE GENERAL PUBLIC AGAINST THE FALLING OF WIRES UPON THE HIGHWAY, THE PERFORMANCE OF WHICH WAS A SERVICE REQUIRED BY LAW TO BE PERFORMED WITHOUT COMPENSATION, AND THE PARAMOUNT REASON ASSIGNED BY THE PUBLIC OFFICIAL FOR THE RELOCATION OF THE LINES--- THE SAFEGUARDING OF THE GENERAL PUBLIC--- BEING FOR ACCEPTANCE AS CORRECT, NOTWITHSTANDING THE CORPORATION'S CONTENTION THAT THE CHANGE WAS BECAUSE OF "AESTHETIC CONSIDERATIONS" ALONE, IN THE ABSENCE OF THE CLEAREST AND MOST CONVINCING PROOF OTHERWISE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHESAPEAKE AND POTOMAC TELEPHONE COMPANIES, APRIL 24, 1939:

YOUR LETTER OF JANUARY 20, 1939--- FILED, WITH SUPPLEMENTAL DATA AND ACCOMPANYING BRIEF, THROUGH YOUR ATTORNEYS, J. RANDOLPH COLEMAN, JR., AND R. A. VAN ORSDEL--- REQUESTS FURTHER REVIEW OF SETTLEMENT DATED OCTOBER 7, 1936, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1,698.01 COVERING ALLEGED COST OF REMOVING OVERHEAD TELEPHONE LINE CROSSINGS AND INSTALLING IN LIEU THEREOF SUBSURFACE CABLE CROSSINGS UNDER MOUNT VERNON MEMORIAL HIGHWAY AT VARIOUS POINTS BETWEEN ALEXANDRIA AND MOUNT VERNON, VA. THIS CLAIM WAS THE SUBJECT OF DECISIONS RENDERED OCTOBER 3, 1935, DECEMBER 9, 1937, AND MARCH 22, 1938, WHEREIN YOU WERE INFORMED OF THE REASONS THIS OFFICE MAY NOT APPROVE PAYMENT FROM APPROPRIATED MONEYS OR MODIFY THE SETTLEMENT DISALLOWING THE CLAIM.

THE PERTINENT FACTS, UPON WHICH YOUR CLAIM IS PREDICATED, ARE SHOWN BY THE RECORDS OF THIS OFFICE TO BE AS FOLLOWS:

BY RESOLUTION DATED SEPTEMBER 2, 1914, THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, ACTING IN PURSUANCE OF AUTHORITY VESTED IN THEM BY SECTIONS 4035 TO 4038, INCLUSIVE, OF THE CODE OF LAWS OF THE STATE OF VIRGINIA (SECTION 1294H, VIRGINIA CODE 1904), GRANTED PERMISSION TO YOUR COMPANY TO CONSTRUCT, OPERATE, AND MAINTAIN POLES, WIRES, ETC., "UPON, ALONG, IN, UNDER, AND THROUGH THE ROADS, STREETS, HIGHWAYS, AND OTHER PUBLIC PLACES, IN THE COUNTY OF FAIRFAX, VIRGINIA.' WHILE IT IS STATED IN THE RESOLUTION THAT "IT IS EXPRESSLY UNDERSTOOD THAT THE FOREGOING PRIVILEGE IS A LICENSE MERELY GRANTED UNDER THE PROVISIONS OF CHAPTER 1294H, OF THE CODE OF 1904," IT IS NOTED THAT IN THE BRIEF FILED BY YOUR ATTORNEYS THIS SO-CALLED PRIVILEGE IS REFERRED TO AS A FRANCHISE" RATHER THAN AS A "LICENSE.' IN VIEW OF ITS NATURE, HOWEVER, AND THE FACT THAT THE COMPANY, ACTING PURSUANT TO THE TERMS THEREOF AND IN RELIANCE THEREON, HAS INCURRED SUBSTANTIAL EXPENSE IN THE ERECTION OF POLES, WIRES AND OTHER EQUIPMENT, NO OBJECTION WILL BE MADE FOR PRESENT PURPOSES TO THE DESIGNATION OF THE GRANT AS A "FRANCHISE.' MCPHEE AND MCGINNITY CO. V. UNION PACIFIC RAILROAD CO., 158 F. 5, 10; SULLIVAN TIMBER CO. V. CITY OF MOBILE, 124 F. 644, 648.

IN ADDITION TO THIS "FRANCHISE" GRANTED BY THE BOARD OF SUPERVISORS OF FAIRFAX COUNTY, THERE WAS GRANTED TO YOUR COMPANY ON JULY 27, 1915, BY THE COMMON COUNCIL AND BOARD OF ALDERMEN OF THE CITY OF ALEXANDRIA (ALSO ACTING PURSUANT TO AUTHORITY VESTED IN THEM BY SECTIONS 4035 TO 4038 OF THE CODE OF LAWS OF THE STATE OF VIRGINIA),"THE RIGHT TO CONSTRUCT, MAINTAIN, AND OPERATE A GENERAL TELEPHONE SYSTEM IN THE CITY OF ALEXANDRIA, AND TO ERECT, CONSTRUCT AND MAINTAIN THE NECESSARY POLES, WIRES, CONDUITS, CABLES, AND FIXTURES, ON, OVER, ALONG, IN, UNDER, AND THROUGH THE STREETS, PUBLIC ALLEYS, AND OTHER PUBLIC WAYS AND PLACES IN THE CITY OF ALEXANDRIA.' YOUR COMPANY IS ALSO SHOWN TO HAVE SECURED A SIMILAR FRANCHISE FROM HARRIET M. FROST, OWNER OF PROPERTY SITUATED AT A PLACE HEREINAFTER REFERRED TO AS WELLINGTON VILLA CROSSING.

IN ACCORDANCE WITH THE RIGHTS THUS CONFERRED, YOUR COMPANY ERECTED POLES, WIRES, ETC., ALONG THE STREETS, ROADS, AND HIGHWAYS OF FAIRFAX COUNTY AND ALEXANDRIA AND HAS SINCE MAINTAINED THEM AS PART OF ITS GENERAL TELEPHONE SYSTEM.

ON MAY 23, 1928, SOME THIRTEEN YEARS AFTER THESE FRANCHISES WERE GRANTED TO YOUR FIRM, THERE WAS APPROVED AN ACT OF CONGRESS (45 STAT. 721), AUTHORIZING CONSTRUCTION OF A MEMORIAL HIGHWAY TO CONNECT MOUNT VERNON, VA., WITH THE ARLINGTON MEMORIAL BRIDGE ACROSS THE POTOMAC RIVER AT WASHINGTON. UNDER THE TERMS OF THIS ACT THE SECRETARY OF AGRICULTURE WAS, AMONG OTHER THINGS, EMPOWERED "TO ACQUIRE SUCH LANDS AS MAY BE NECESSARY FOR THE PROPER LOCATION, CONSTRUCTION, AND MAINTENANCE OF SAID HIGHWAY, INCLUDING PARKING, BY PURCHASE, CONDEMNATION, GIFT, GRANT, DEDICATION, DEVICE, OR OTHERWISE, FROM ANY SOURCE WHATSOEVER.' A CONSIDERABLE PORTION OF THE LAND ACQUIRED PURSUANT TO THIS ENACTMENT WAS LOCATED IN THE CITY OF ALEXANDRIA AND FAIRFAX COUNTY, AND AT THE SIX DIFFERENT POINTS TO WHICH THE PRESENT CLAIM RELATES THE WIRES OF YOUR COMPANY CROSSED THE NEW HIGHWAY SITE--- THESE POINTS BEING IDENTIFIED AS BASHFORD LANE, SOUTH ALEXANDRIA, WELLINGTON VILLA, ARCTURUS LANE, YATES PROPERTY, AND OLD WARWICK STATION. THE ADMINISTRATIVE CONTROL OF THE HIGHWAY WAS TRANSFERRED, UPON COMPLETION, FROM THE DEPARTMENT OF AGRICULTURE TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL (46 STAT. 483).

THE REASONS WHICH INDUCED THE PROPOSAL TO CHANGE THE LOCATION OF THE WIRES ARE SET FORTH IN LETTER SIGNED BY THE SUPERINTENDENT OF THE NATIONAL PARK SERVICE, DATED JANUARY 11, 1935, AS FOLLOWS:

* * * WHEN THE GOVERNMENT PURCHASED THESE AREAS FOR HIGHWAY PURPOSES THE TELEPHONE COMPANY WAS PERMITTED TO RETAIN ITS POLES AND LINES THEREON, AND NO ATTEMPT WAS MADE TO DISRUPT TELEPHONIC SERVICE, EXCEPT THE BUREAU OF PUBLIC ROADS DEEMED IT ADVISABLE TO PROHIBIT THE OVERHEAD CROSSING OF THE TELEPHONE LINES IN ORDER TO PRECLUDE THE FALLING OF WIRES UPON THE HIGHWAY SUCH AS FREQUENTLY HAPPENS DURING STORMY WEATHER. * * *

* * * IT IS DESIRED TO CONTINUE THIS WORK SO AS TO EVENTUALLY ELIMINATE ALL OVERHEAD CROSSINGS AND THE RESULTING DANGER TO THE PUBLIC.

A SIMILAR REASON FOR THE CHANGE IS ASSIGNED BY THE ASSISTANT SECRETARY OF THE INTERIOR IN LETTER OF AUGUST 3, 1935, WHEREIN IT IS STATED THAT:

* * * THE DIRECTOR OF THE FORMER OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, IN VIEW OF HIS RESPONSIBILITY FOR THE SAFETY OF THE PUBLIC, CONSIDERED IT ADVISABLE TO PRECLUDE THE FALLING OF WIRES UPON THE HIGHWAY, SUCH AS FREQUENTLY HAPPENS DURING STORMY WEATHER, BY CHANGING THE SYSTEM OF CROSSING FROM OVERHEAD TO UNDERGROUND.

IT APPEARS THAT IN CONNECTION WITH THE NEGOTIATIONS WHICH ATTENDED THE MAKING OF ARRANGEMENTS FOR THE CHANGING OF THE WIRES OF YOUR COMPANY FROM OVERHEAD TO UNDERGROUND YOU SUBMITTED TO THE GOVERNMENT AN ESTIMATE OF THE EXPENSE WHICH WOULD BE ENTAILED, AND BY LETTER OF JUNE 20, 1933, INITIALED BY "J. A. WOODRUFF, DIRECTOR," YOU WERE AUTHORIZED TO PROCEED WITH THE WORK AT A COST NOT TO EXCEED $1,905. UPON COMPLETION OF THE WORK YOU SUBMITTED AN INVOICE TO THE UNITED STATES IN THE AMOUNT OF $1,698.01, WHICH IS SAID TO REPRESENT THE ACTUAL COST TO YOUR FIRM OF EFFECTING THE REQUIRED CHANGE IN LOCATION OF YOUR LINES.

THE SOLE QUESTION FOR PRESENT CONSIDERATION IS YOUR RIGHT TO RECEIVE THIS AMOUNT UNDER THE FACTS AND CIRCUMSTANCES AS ABOVE RELATED.

IT IS WELL SETTLED THAT FRANCHISES OF PUBLIC SERVICE CORPORATIONS ARE PROPERTY. MONONGAHELA NAVIGATION CO. V. UNITED STATES, 148 U.S. 312, 329; WILLCOX V. CONSOLIDATED GAS CO., 212 U.S. 19, 44. IT FOLLOWS, THEREFORE, SINCE THE PROPERTY OWNERS FROM WHOM THE UNITED STATES PURCHASED THE LAND IN QUESTION COULD CONFER NO GREATER TITLE OR INTEREST THAN THEY POSSESSED, THAT THE TITLE TAKEN BY THE GOVERNMENT TO THE LAND WHICH IT PURCHASED WAS SUBJECT TO ANY FRANCHISE RIGHTS THEREIN HELD BY YOUR COMPANY. THESE RIGHTS, BEING PROPERTY, COULD NOT BE TAKEN OR USED BY THE UNITED STATES WITHOUT PAYMENT OF JUST COMPENSATION. MONONGAHELA NAVIGATION CO. V. UNITED STATES, SUPRA. BUT IT DOES NOT FOLLOW AS A COROLLARY THAT EVERY INTERFERENCE WITH YOUR FRANCHISE ON THE PART OF THE UNITED STATES AMOUNTS TO SUCH AN INTERFERENCE OR TAKING AS TO ENTITLE YOU TO COMPENSATION. BEFORE THIS LAND WAS PURCHASED BY THE UNITED STATES YOUR RIGHT OF PROPERTY IN THE FRANCHISE WAS SUBJECT TO THE PARAMOUNT RIGHT OF THE STATE OF VIRGINIA TO REQUIRE COMPLIANCE WITH SUCH REASONABLE RULES, REGULATIONS, OR ORDERS AS ITS RESPONSIBLE OFFICIALS MIGHT SEE FIT TO MAKE IN THE REASONABLE EXERCISE OF THE STATE'S POLICE POWER (C., B. AND Q. RY.CO. V. DRAINAGE COMMISSIONERS, 200 U.S. 561,583, ET SEQ.; NEW ORLEANS GAS LIGHT CO. V. DRAINAGE COMMISSION, 197 U.S. 453; C; B. AND Q. RY.CO. V. CHICAGO, 166 U.S. 226), AND AFTER THE TRANSFER TO THE UNITED STATES YOU WERE SIMILARLY SUBJECT TO THE SAME RIGHT IN THE UNITED STATES, FOR THE FEDERAL GOVERNMENT "HAS A POWER OVER ITS OWN PROPERTY ANALOGOUS TO THE POLICE POWER OF THE SEVERAL STATES.' CAMFIELD V. UNITED STATES, 167 U.S. 518, 525. ALSO, SEE GENERALLY BLOCK V. HIRSH, 256 U.S. 135, WHICH GIVES RECOGNITION TO A REGULATORY POWER IN THE UNITED STATES COMPARABLE TO THE POLICE POWER OF THE STATES.

THE ENFORCEMENT OF AN ORDER ISSUED IN THE LEGITIMATE EXERCISE OF A POLICE POWER IS NOT A TAKING OF PROPERTY WITHOUT DUE PROCESS OF LAW AND COMPENSATION NEED NOT BE MADE. NEW ORLEANS PUBLIC SERVICE, INC. V. NEW ORLEANS, 281 U.S. 682, 687; CINCINNATI, I. AND W.RY. V. CONNERSVILLE, 218 U.S. 336, 344.

HENCE, IT APPEARS CLEAR THAT IF THE UNITED STATES, IN THE VALID EXERCISE OF A REGULATORY AUTHORITY COMPARABLE TO THAT OF THE POLICE POWER IN A STATE, COULD REQUIRE YOUR FIRM TO REMOVE ITS OVERHEAD LINES AND PLACE THEM BENEATH THE HIGHWAY, YOU ARE NOT ENTITLED TO COMPENSATION FOR HAVING PERFORMED THIS SERVICE. NOR WOULD THIS CONCLUSION BE ALTERED IF THE FACTS ARE AS YOU CONTEND THAT A DULY EMPOWERED PUBLIC OFFICIAL AUTHORIZED YOU TO PROCEED WITH THE WORK AND INDICATED THAT YOU WOULD RECEIVE REIMBURSEMENT FROM THE UNITED STATES FOR EXPENSES INCURRED, FOR--- AS YOUR BRIEF CONCEDES--- SUCH OFFICIAL WAS CLEARLY WITHOUT AUTHORITY TO OBLIGATE THE UNITED STATES TO PAY YOU FOR ANY SERVICE WHICH YOU WERE REQUIRED BY LAW TO PERFORM WITHOUT COMPENSATION. A PUBLIC OFFICIAL CAN ONLY BIND THE GOVERNMENT WHEN ACTING PURSUANT TO ADEQUATE AUTHORITY PROPERLY CONFERRED. FLOYD'S ACCEPTANCES, 7 WALL. 666; WHITESIDE V. UNITED STATES, 93 U.S. 247.

IN THIS CONNECTION YOUR BRIEF, FILED THROUGH COUNSEL AS HEREINBEFORE STATED, RECITES THE CORRECT RULE WHICH THIS OFFICE MUST RECOGNIZE IN DECIDING THIS QUESTION, TO BE AS FOLLOWS:

THE COMPANY IS WILLING TO CONCEDE THAT NOT EVERY EMPLOYEE OF THE GOVERNMENT IS AUTHORIZED TO OBLIGATE IT AND THAT EVEN A DULY AUTHORIZED OFFICER CANNOT OBLIGATE THE GOVERNMENT TO PAY FOR SERVICES WHICH IT IS ENTITLED TO HAVE GRATUITOUSLY PERFORMED FOR IT. * * * (CLAIMANT'S BRIEF, PAGE 5.)

AN AGREEMENT, SUCH AS IS SUGGESTED, TO PAY YOUR FIRM FOR PERFORMING AN OBLIGATION IMPOSED UPON IT BY LAW APPARENTLY WOULD BE VOID AB INITIO FOR WANT OF CONSIDERATION AND AS BEING CONTRARY TO PUBLIC POLICY. J. J. PREIS AND CO. V. UNITED STATES, 58 CT.CLS. 81, 86; VULCANITE CEMENT CO. V. UNITED STATES, 74 CT.CLS. 692, 705.

THE POLICE POWER (WITH WHICH, AS ABOVE NOTED, THE POWER OF THE UNITED STATES OVER ITS PROPERTY IS COMPARABLE) IS OF FAR-REACHING SCOPE; IS "ONE OF THE LEAST LIMITABLE OF THE POWERS OF GOVERNMENT; " AND IS COEXTENSIVE WITH THE NECESSITIES OF ANY GIVEN CASE WHICH INVOLVES THE SAFEGUARDING OF THE PUBLIC INTEREST. EUBANK V. RICHMOND, 226 U.S. 137, 142; SLIGH V. KIRKWOOD, 237 U.S. 52, 58-9; HOME BUILDING AND LOAN ASSOCIATION V. BLAISDELL" 290 U.S. 398; 436-7; ASHER V. INGELS, 13 F.SUPP. 654, 658. THAT IT INCLUDES THE RIGHT TO REQUIRE THE PLACING OF WIRES OF PUBLIC SERVICE COMPANIES UNDER THE SURFACE OF THE GROUND HAS BEEN RECOGNIZED IN SEVERAL CASES.

IN THE CASE OF OIL CITY V. POSTAL TELEGRAPH CABLE CO., 68 PA.SUPER.CT. 77, THE COURT ANNOUNCED THE RULE IN SITUATIONS OF THIS NATURE TO BE THAT--

THE RIGHT TO MAINTAIN TELEPHONE AND TELEGRAPH WIRES ALONG THE STREETS OF A CITY IS NOT ABSOLUTE ALTHOUGH SUCH OCCUPANCY MAY BE UNDER MUNICIPAL CONSENT; IT IS SUBJECT TO SUCH REGULATION AS THE PUBLIC INTERESTS DEMAND. WHEN, THEREFORE, THE SAFETY AND COMFORT OF THE COMMUNITY REQUIRE THAT ELECTRICAL WIRES BE PLACED IN CONDUITS BENEATH THE SURFACE SUCH REGULATION IS AS LAWFUL AS WOULD BE ONE WHICH REQUIRED THE WIRES TO BE PLACED ABOVE THE GROUND OR IN A CONDUIT ALONG THE SURFACE OR THAT PRESCRIBED THE KIND AND LOCATION OF POLES TO BE USED.

AGAIN, IN THE CASE OF DUQUESNE LIGHT CO. V. CITY OF PITTSBURGH, 251 PA. 557, 97 ATL. 85, 87, IT WAS STATED THAT:

THE RIGHT OF A MUNICIPALITY TO EXERCISE CONTROL OVER THE ERECTION AND MAINTENANCE OF POLES AND ELECTRIC WIRES IN THE STREETS, AND TO COMPEL THEM TO BE REMOVED OR THE WIRES PLACED UNDERGROUND, WHERE THE SAFETY OR CONVENIENCE OF THE PUBLIC REQUIRES SUCH ACTION, HAS BEEN GENERALLY RECOGNIZED.

IN THE CASE OF PORTER V. MUNICIPAL GAS COMPANY, 220 N.Y. 152, 156, THE COURT DISMISSED THE CONTENTION THAT AN ORDINANCE REQUIRING CERTAIN WIRES OF PUBLIC SERVICE COMPANIES TO BE PLACED UNDERGROUND WAS UNCONSTITUTIONAL AS IMPAIRING PROPERTY RIGHTS, WITH THESE WORDS:

WE FEEL SO CLEAR THAT THE COMMON COUNCIL HAD THE POWER, UNDER THE AUTHORITY CONFERRED UPON IT BY STATUTE AND UNDER THE CONDITIONS INCORPORATED IN DEFENDANT'S CONTRACT WITH THE CITY, TO PASS AN ORDINANCE OF THIS KIND IN THE EXERCISE OF THE POLICE POWER * * * THAT WE SHALL NOT CONSIDER THESE QUESTIONS AT LENGTH.

SEE, ALSO, AMERICAN RAPID TELEGRAPH CO. V. HESS, 125 N.Y. 641; NORTHWESTERN TELEPHONE EXCHANGE CO. V. MINNEAPOLIS, 53 L.R.A. 175; WESTERN UNION TELEGRAPH CO. V. MAYOR OF NEW YORK, 3 L.R.A. 449; PEOPLE EX REL NEW YORK ELECTRIC LINES CO. V. SQUIRE, 107 N.Y. 593; LACLEDE GAS LIGHT CO. V. MURPHY, 170 U.S. 78; NEW ORLEANS GAS LIGHT CO. V. DRAINAGE COMMISSION, 197 U.S. 453. THESE CASES, OF COURSE, RECOGNIZE THAT ANY ORDER REQUIRING THE PLACING OF LINES BENEATH THE SURFACE MUST BE MADE IN THE PUBLIC INTEREST AND FOR THE PURPOSE OF FURTHERING A PUBLIC NEED OR CONVENIENCE; SUCH A REQUIREMENT MAY NOT BE IMPOSED ARBITRARILY OR FOR THE ACCOMPLISHMENT OF A PURPOSE NOT WITHIN THE REGULATORY POWER. FOR INSTANCE, THE PRINCIPLE SET FORTH IN THE BRIEF FILED BY YOUR ATTORNEYS THAT "RESTRICTIONS ON THE USE OF PROPERTY FOR PURELY AESTHETIC PURPOSES ARE REGARDED AS INVASIONS OF PRIVATE PROPERTY" IS FULLY RECOGNIZED, WITH THE MODIFICATION, HOWEVER, THAT "AESTHETIC CONSIDERATIONS ENTER IN TO A GREAT EXTENT, AS AN AUXILIARY CONSIDERATION, WHERE THE REGULATION HAS A REAL OR REASONABLE RELATION TO THE SAFETY, HEALTH, MORALS, OR GENERAL WELFARE.' GENERAL OUTDOOR ADVERTISING CO. V. INDIANAPOLIS, 202 IND. 85. SEE ANNOTATIONS IN 72 A.L.R. 465, 477, ET SEQ.

WITH RESPECT TO THE PRESENT CASE, IT MAY BE SAID, THEREFORE, THAT WHILE THE REGULATORY POWER OF THE UNITED STATES OVER ITS PROPERTY (WHICH, IT MAY BE REPEATED, IS ANALOGOUS TO THE POLICE POWER OF THE STATES) MAY NOT BE SUCH AS TO JUSTIFY THE ISSUANCE OF AN ORDER FOR PLACING ALL TELEPHONE LINES BENEATH THE SURFACE OF THE MOUNT VERNON MEMORIAL HIGHWAY FOR THE SOLE PURPOSE OF BEAUTIFYING SAID HIGHWAY, THE FACT THAT THIS MAY HAVE BEEN A COLLATERAL CONSIDERATION WOULD NOT NULLIFY THE VALIDITY OF SUCH AN ORDER AS A VALID EXERCISE OF REGULATORY POWER SINCE THE PRINCIPAL REASON WHICH MOTIVATED THE CHANGE IS OFFICIALLY STATED TO BE THAT "THE DIRECTOR OF THE FORMER OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, IN VIEW OF HIS RESPONSIBILITY FOR THE SAFETY OF THE PUBLIC, CONSIDERED IT ADVISABLE TO PRECLUDE THE FALLING OF WIRES UPON THE HIGHWAY, SUCH AS FREQUENTLY HAPPENS DURING STORMY WEATHER.' IN THE FACE OF THIS DEFINITE OFFICIAL PRONOUNCEMENT THAT SAFETY OF THE PUBLIC WAS THE PRIME REASON FOR CHANGING THE WIRES FROM OVERHEAD TO UNDERGROUND, YOUR CONTENTION THAT THE CHANGE WAS "TO SATISFY AESTHETIC CONSIDERATIONS" MUST FAIL. WHERE A REASON IS ASSIGNED BY A PUBLIC OFFICIAL AS THE MOTIVE FOR THE EXERCISE OF AN OFFICIAL ACT EVERY PRESUMPTION IS TO BE INDULGED IN FAVOR OF THE CORRECTNESS OF HIS STATEMENT OF REASON, AND ONLY THE CLEAREST AND MOST CONVINCING PROOF THAT SUCH STATEMENT IS WITHOUT BASIS CAN SERVE TO OVERCOME THAT PRESUMPTION. SEE, BY ANALOGY, LOUISVILLE AND NASHVILLE RAILWAY V. KENTUCKY, 161 U.S. 677, 700-701; UNITED STATES V. CALIFORNIA AND OREGON LAND CO., 148 U.S. 31, 43. SINCE THE UNITED STATES, IN THE EXERCISE OF ITS REGULATORY POWER TO PROTECT THE PUBLIC AGAINST DANGER, WAS POSSESSED OF AMPLE AUTHORITY TO REQUIRE YOUR COMPANY, WITHOUT COMPENSATION, TO PLACE THE LINES UNDERGROUND, IT FOLLOWS, AS PREVIOUSLY STATED, THAT THERE WAS NO AUTHORITY IN ANY PUBLIC OFFICIAL TO OBLIGATE THE UNITED STATES TO MAKE PAYMENT THEREFOR.

ACCORDINGLY, THE PREVIOUS DECISIONS WERE CORRECT IN REFUSING TO MODIFY THE ACTION DISALLOWING YOUR CLAIM. YOUR BRIEF, AT PAGES 8-9, INDICATES A SMALL PAYMENT OF $135 WAS MADE TO YOU BY A DISBURSING OFFICER FOR A RELOCATION OF YOUR WIRES AT SLATER'S LANE CROSSING UNDER CIRCUMSTANCES SIMILAR TO THE CIRCUMSTANCES UNDER WHICH THE RELOCATIONS WERE MADE WHICH ARE THE SUBJECT OF YOUR PRESENT CLAIM. ACCEPTING THAT SUCH AN IMPROPER PAYMENT HAS BEEN OBTAINED BY YOU, RESTITUTION SHOULD BE MADE FORTHWITH. SEE UNITED STATES V. DEMPSEY, 104 F. 197, 199; HEIDT V. UNITED STATES, 56 F./2D) 599, CERTIORARI DENIED 287 U.S. 601; UNITED STATES V. WURTS, 303 U.S. 414.

GAO Contacts

Office of Public Affairs