A-15495, OCTOBER 19, 1926, 6 COMP. GEN. 273

A-15495: Oct 19, 1926

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THE RAILROAD COMPANY IS NOT ENTITLED TO REIMBURSEMENT OF THE EXPENSE OF ANY VOLUNTARY ASSISTANCE RENDERED BY IT IN PLACING THE WIRES. IT APPEARS THAT THE UNITED STATES DESIRING TO HAVE CONSTRUCTED AND MAINTAINED A HIGH TENSION ELECTRIC POWER TRANSMISSION LINE UNDER THE RAILROAD'S RIGHT OF WAY FROM THE EASTERLY TO WESTERLY PORTION OF THE FLYING FIELD. AN AGREEMENT WAS ENTERED INTO JULY 31. WHEREBY THERE IS GIVEN AND GRANTED TO THE UNITED STATES. THROUGH THE CONDUIT WILL BE RUN A 2. AMONG THE TERMS AND CONDITIONS UNDER WHICH THE LICENSE WAS GRANTED THE AGREEMENT PROVIDES: (1) THAT THE WORK OF CONSTRUCTION AND MAINTAINING THE SAID HIGH TENSION ELECTRIC POWER TRANSMISSION LINE SHALL BE AT THE SOLE COST AND EXPENSE OF THE LICENSEE AND AT ALL TIMES UNDER THE SUPERVISION OF THE ENGINEER OF THE RAILWAY COMPANY.

A-15495, OCTOBER 19, 1926, 6 COMP. GEN. 273

VOLUNTARY SERVICES UNDER AN AGREEMENT GRANTING TO THE UNITED STATES A LICENSE TO EXTEND A HIGH TENSION ELECTRIC POWER TRANSMISSION LINE UNDER THE TRACKS OF A RAILROAD, THE WORK OF CONSTRUCTION AND MAINTENANCE OF SAID TRANSMISSION LINE TO BE AT THE SOLE COST AND EXPENSE OF THE UNITED STATES, THE RAILROAD COMPANY IS NOT ENTITLED TO REIMBURSEMENT OF THE EXPENSE OF ANY VOLUNTARY ASSISTANCE RENDERED BY IT IN PLACING THE WIRES.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 19, 1926:

THE RICHMOND, FREDERICKSBURG AND POTOMAC RAILROAD CO. REQUESTED, AUGUST 23, 1926, REVIEW OF SETTLEMENT NO. 057833, DATED JULY 9, 1926, DISALLOWING ITS CLAIM FOR $31.26 AS THE COST OF SERVICES OF SECTION FORCE IN AIDING THE UNITED STATES TO PUT A HIGH TENSION ELECTRIC POWER TRANSMISSION LINE UNDER THE COMPANY'S TRACKS NEAR MARINE BARRACKS, CHAPPAWAMSIC, VA.

IT APPEARS THAT THE UNITED STATES DESIRING TO HAVE CONSTRUCTED AND MAINTAINED A HIGH TENSION ELECTRIC POWER TRANSMISSION LINE UNDER THE RAILROAD'S RIGHT OF WAY FROM THE EASTERLY TO WESTERLY PORTION OF THE FLYING FIELD, QUANTICO, VA., AN AGREEMENT WAS ENTERED INTO JULY 31, 1925, BETWEEN THE RAILROAD COMPANY AND THE UNITED STATES, REPRESENTED BY THE SECRETARY OF THE NAVY, WHEREBY THERE IS GIVEN AND GRANTED TO THE UNITED STATES, AS LICENSEE, THE RIGHT TO CONSTRUCT AND MAINTAIN SUCH TRANSMISSION LINE UNDER THE COMPANY'S TRACKS AND THROUGH AND ACROSS ITS RIGHT OF WAY AS FOLLOWS:

SAID CROSSING TO BE MADE AT POLE NO. 16 SOUTH OF CHAPPAWAMSIC CREEK ON THE WEST SIDE OF THE RAILROAD BY A 2 INCH GALVANIZED STEEL CONDUIT. THROUGH THE CONDUIT WILL BE RUN A 2,300-VOLT, 3-CONDUCTOR, AC CIRCUIT BY A NO. 6 STRANDED, LEAD COVERED, UNDERGROUND CABLE, SAID 2 INCH CONDUIT TO PASS UNDER THE MAIN LINE TRACKS OF THE RAILROAD APPROXIMATELY 6 FEET PARALLELING THE BASE OF TIES, REMAINING UNDERGROUND FROM POLE NO. 16 ON WEST SIDE OF RAILROAD UNTIL THE CONDUIT PASSES INTO THE PROPERTY OF THE U.S. MARINE CORPS ON THE EAST SIDE OF THE RAILROAD.

AMONG THE TERMS AND CONDITIONS UNDER WHICH THE LICENSE WAS GRANTED THE AGREEMENT PROVIDES:

(1) THAT THE WORK OF CONSTRUCTION AND MAINTAINING THE SAID HIGH TENSION ELECTRIC POWER TRANSMISSION LINE SHALL BE AT THE SOLE COST AND EXPENSE OF THE LICENSEE AND AT ALL TIMES UNDER THE SUPERVISION OF THE ENGINEER OF THE RAILWAY COMPANY.

THE AGREEMENT WAS SUBSEQUENTLY MODIFIED TO HAVE THE CROSSING OF THE RIGHT OF WAY MADE AT POLE 18 INSTEAD OF AT POLE 16.

THE CLAIM WAS DISALLOWED UPON THE GROUND THAT UNDER THE AGREEMENT THE UNITED STATES WAS OBLIGATED TO DO ALL THE WORK NECESSARY FOR LAYING THE LINE; THAT THE HELP GIVEN BY THE CLAIMANT WAS UNSOLICITED AND WITHOUT PROMISE OF COMPENSATION; THAT NO CIRCUMSTANCES EXISTED UNDER WHICH THE CLAIMANT COULD EXPECT TO BE PAID FOR ITS WORK; AND THAT CLAIMANT WAS A MERE VOLUNTEER.

CLAIMANT STATES THAT THE REPRESENTATIVE OF THE MARINE CORPS, ON FINDING IT IMPOSSIBLE TO DRIVE A CONDUIT UNDER THE COMPANY'S TRACKS, NOTIFIED THE COMPANY'S ROAD SUPERVISOR IT WOULD BE NECESSARY TO OPEN A DITCH 6 FOOT DEEP UNDER BOTH MAIN-LINE TRACKS, AND THAT THE DITCH WAS OPENED ON THE REQUEST OF THE MARINE CORPS REPRESENTATIVE. CLAIMANT ALSO STATES THAT IT WOULD NOT BE PRACTICABLE TO ALLOW ANYONE OTHER THAN ITS ENGINEERS TO OPEN SUCH A DITCH UNDER ITS TRACKS.

WITH REFERENCE TO THE SERVICES IN QUESTION, LIEUT. JAMES H. STROTHER, UNITED STATES MARINE CORPS, REPORTED MAY 14, 1926:

2. THE FOLLOWING IS A COMPLETE ACCOUNT OF ALL CIRCUMSTANCES CONNECTED WITH THE PLACING OF HIGH-TENSION WIRES UNDERNEATH THE R., F. AND P. RAILROAD'S TRACKS. FIRST, THE CONTRACT CALLED FOR OUR TAP TO BE MADE ON POLE NO. 16. THIS POLE WAS VERY UNSATISFACTORY TO US, DUE TO ITS POSITION IN THE SWAMP. WE SUCCEEDED IN GETTING IT CHANGED TO POLE NO. 18, WHICH IS DIRECTLY OPPOSITE THE POSITION OF OUR TRANSFORMER BANK. THE RAILROAD OFFICIALS WANTED TO BE NOTIFIED WHEN WE WERE READY TO GO AHEAD.

THIS WAS DONE BY LIEUTENANT MERRITT A. EDSON. THE NEXT DAY, OR SOON THEREAFTER, THE ROAD SUPERVISOR AND ONE OF THE COMPANY'S CHIEF ELECTRICIANS INTERVIEWED ME ON THE GROUND, AND WE DISCUSSED WAYS AND MEANS. THEY TOLD ME THAT IT WAS UNNECESSARY TO GO SIX FEET; THAT 18 INCHES WAS SUFFICIENT. I REPLIED THAT AS OUR CONTRACT CALLED FOR SIX FEET THAT I WOULD PREFER PLACING IT THAT WAY UNLESS THE RAILROAD HAD THE CONTRACT CHANGED. HE TOLD ME HE WOULD CALL UP RICHMOND AND LET ME KNOW THROUGH THE QUANTICO AGENT. THE ROAD SUPERVISOR THEN STATED THAT HE WANTED ME TO LET MR. LOWRY, A ROAD FOREMAN, RESIDING AT WIDEWATER, KNOW WHEN I BEGAN. WE DISCUSSED THE CHANCES OF DRIVING THE CONDUIT UNDER THE TRACKS, AND I STATED THAT THIS WOULD BE ATTEMPTED, THOUGH I DOUBTED ITS SUCCESS. AS SOON AS THE AGENT AT QUANTICO NOTIFIED ME THAT THE ELECTRICIAN ABOVE MENTIONED HAD GOTTEN IN TOUCH WITH RICHMOND AND THAT THEY DID NOT WANT TO CHANGE THE CONTRACT I ASKED THE AGENT TO INFORM MR. LOWRY THAT I WOULD BE READY TO GO AHEAD THE FOLLOWING DAY. THE NEXT DAY MR. LOWRY APPEARED WITH A "SECTION GANG.' HE TOLD ME THAT THE ROAD SUPERVISOR WOULD APPEAR SOON AND THAT HE WAS WAITING FOR HIM. IN THE MEANTIME I HAD DUG TRENCHES FROM OUR TAP ON POLE NO. 18 TO THE POINT OF THE TRACK WHERE WE WISHED TO GO UNDER. WE HAD TRIED DRIVING THE CONDUIT, BUT FOUND IT PRACTICALLY IMPOSSIBLE. THE ROAD SUPERVISOR APPEARED AT ABOUT 10.00 A.M., AND WE LOOKED OVER THE SITUATION AGAIN; AND AS SIX-FOOT TRENCHES HAD TO BE DUG, THERE WAS DANGER OF A CAVE-IN. AS SUCH AN INSTANCE MIGHT CAUSE SERIOUS RESULTS, HE DECIDED TO PUT HEAVY STRINGERS UNDER THE TRACK BEFORE THE TRENCH WAS DUG AND SUGGESTED THAT MR. LOWRY AND HIS MEN TAKE CARE OF THAT. WHAT INSTRUCTIONS HE GAVE MR. LOWRY AND HIS MEN I DO NOT KNOW. HOWEVER, HE AND MR. LOWRY TOOK SOME MEN ON A HAND CAR AND WENT UP THE ROAD A PIECE AND BROUGHT BACK TWO HEAVY TIMBERS. MR. LOWRY FROM THEN ON DUG THE TRENCHES DIRECTLY UNDER THE TRACK AFTER PLACING THE STRINGERS, AND I DUG THE TRENCHES ON EACH SIDE OF THE TRACK AND ON TO OUR TRANSFORMER BANK. DUE TO HIS FAMILIARITY WITH MOVING RAILROAD TIES AND REPLACING THEM, THIS ASSISTANCE WAS OF GREAT VALUE AND HELP TO US. HOWEVER, NO MENTION WAS MADE IN ANY OF MY DISCUSSIONS WITH THE ROAD SUPERVISOR IN REGARD TO PAY FOR TIME OF THE ROAD'S EMPLOYEES. CAPTAIN ROBERT E. WILLIAMS WAS PRESENT AT THE FIRST INTERVIEW AND IF IREMEMBER CORRECTLY SENT FOR A COPY OF THE CONTRACT WHICH WE LOOKED OVER.

THIS REPORT INDICATES THAT THE DIGGING OF THE TRENCHES UNDER THE RAILROAD COMPANY'S TRACKS BY THE RAILROAD COMPANY'S SECTION FORCE WAS NOT DONE AT THE REQUEST OF THE MARINE CORPS REPRESENTATIVE, NOR DOES IT APPEAR THAT HE WAS AUTHORIZED TO MAKE SUCH A REQUEST.

THE AGREEMENT WHEREBY THERE WAS GRANTED THE RIGHT TO CONSTRUCT A TRANSMISSION LINE UNDER THE RAILROAD COMPANY'S RIGHT OF WAY AND TRACKS DOES NOT PROVIDE THAT ANY PART OF THE ACTUAL WORK OF CONSTRUCTION OF THE TRANSMISSION LINE MUST BE DONE BY THE RAILROAD COMPANY'S FORCE, BUT THAT THE CONSTRUCTION SHOULD BE UNDER THE SUPERVISION OF THE ENGINEER OF THE RAILROAD COMPANY.

WHILE THE WORK DONE BY THE RAILROAD'S SECTION FORCE MAY, AS STATED, HAVE BEEN OF GREAT VALUE AND HELP TO THE MARINE CORPS FORCE ENGAGED IN DIGGING THE TRENCHES FOR THE TRANSMISSION LINE, IT DOES NOT APPEAR THAT THE DIGGING OF THE TRENCHES UNDER THE COMPANY'S TRACKS WAS IMPOSSIBLE OF SATISFACTORY PERFORMANCE BY THE LATTER UNDER THE SUPERVISION OF THE ENGINEER OF THE RAILROAD COMPANY.

SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49, EXPRESSLY PROVIDES THAT NO DEPARTMENT OR ANY OFFICER OF THE GOVERNMENT SHALL ACCEPT VOLUNTARY SERVICE FOR THE GOVERNMENT, EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF PROPERTY. AND THE ACCEPTANCE OF VOLUNTARY SERVICE IN CONTRAVENTION OF THE STATUTE CAN NOT FORM THE BASIS OF A LEGAL CLAIM AGAINST THE GOVERNMENT. THE SERVICES HERE IN QUESTION APPEAR TO HAVE BEEN VOLUNTARY AND RENDERED IN A CASE NOT WITHIN THE EXCEPTION STATED IN THE STATUTE CITED, SUPRA. ..END :