A-4197, AUGUST 29, 1924, 4 COMP. GEN. 234

A-4197: Aug 29, 1924

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" AS THAT TERM IS USED IN THE SEVERAL ACTS OF CONGRESS PROVIDING FOR FEDERAL AID TO HIGHWAY CONSTRUCTION. 1924: I HAVE YOUR LETTER OF JULY 18. " AS THAT WORD IS USED IN THE CLAUSE APPEARING IN THE SEVERAL ACTS OF CONGRESS PROVIDING FOR FEDERAL AID IN HIGHWAY CONSTRUCTION WHICH EXCEPTS BRIDGE CONSTRUCTION FROM THE MAXIMUM AMOUNT PER MILE THE GOVERNMENT MAY CONTRIBUTE. IT IS PROVIDED THAT FEDERAL AID SHALL NOT EXCEED 50 PERCENT OF THE TOTAL ESTIMATED COST OF THE CONSTRUCTION. CERTAIN INCREASES HAVE BEEN AUTHORIZED IN PUBLIC-LAND STATES NOT HERE INVOLVED. YOU STATE THE FACTS TO BE AS FOLLOWS: THE CIRCUMSTANCES ARE AS FOLLOWS: A STEEL TRUSS BRIDGE EXTENDS EASTERLY ACROSS PART OF THE MISSISSIPPI RIVER AT WINONA.

A-4197, AUGUST 29, 1924, 4 COMP. GEN. 234

FEDERAL AID TO STATE HIGHWAY CONSTRUCTION - APPROACH TO BRIDGE AN EARTH FILL ACROSS FIVE-EIGHTHS OF A MILE OF FLOOD PLAINS FROM THE EAST END OF THE WINONA BRIDGE, MINNESOTA, ALREADY BUILT OVER THE MISSISSIPPI RIVER CHANNEL, TO THE C.B. AND Q. RAILROAD EMBANKMENT DOES NOT CONSTITUTE AN "APPROACH" TO THE BRIDGE AND THEREFORE MAY NOT BE REGARDED AS COMPREHENDED IN THE TERM "BRIDGES," AS THAT TERM IS USED IN THE SEVERAL ACTS OF CONGRESS PROVIDING FOR FEDERAL AID TO HIGHWAY CONSTRUCTION, EXCEPTING BRIDGE CONSTRUCTION FROM THE MAXIMUM AMOUNT PER MILE THE GOVERNMENT MAY CONTRIBUTE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, AUGUST 29, 1924:

I HAVE YOUR LETTER OF JULY 18, 1924, REQUESTING DECISION WHETHER AN EARTH FILL ACROSS FIVE-EIGHTHS OF A MILE OF FLOOD PLAINS FROM THE EAST END OF THE WINONA BRIDGE, MINNESOTA, ALREADY BUILT OVER THE MISSISSIPPI RIVER CHANNEL, TO THE C.B. AND Q. RAILROAD EMBANKMENT MAY BE REGARDED AS COMPREHENDED IN THE TERM "BRIDGES," AS THAT WORD IS USED IN THE CLAUSE APPEARING IN THE SEVERAL ACTS OF CONGRESS PROVIDING FOR FEDERAL AID IN HIGHWAY CONSTRUCTION WHICH EXCEPTS BRIDGE CONSTRUCTION FROM THE MAXIMUM AMOUNT PER MILE THE GOVERNMENT MAY CONTRIBUTE.

UNDER SECTION 6 OF THE ACT OF JULY 11, 1916, 39 STAT. 357, AND SECTION 11 OF THE FEDERAL HIGHWAY ACT OF NOVEMBER 9, 1921, 42 STAT. 212, IT IS PROVIDED THAT FEDERAL AID SHALL NOT EXCEED 50 PERCENT OF THE TOTAL ESTIMATED COST OF THE CONSTRUCTION. CERTAIN INCREASES HAVE BEEN AUTHORIZED IN PUBLIC-LAND STATES NOT HERE INVOLVED. SECTION 2 OF THE ACT OF NOVEMBER 9, 1921, SUPRA, INCLUDES "BRIDGES" WITHIN THE DEFINITION OF THE TERM "HIGHWAY.'

THE PROVISION FOR FEDERAL PARTICIPATION UP TO 50 PERCENT OF THE ESTIMATED COST HAS BEEN RESTRICTED IN VARIOUS ACTS BY THE FIXING OF A MAXIMUM AMOUNT PER MILE WHICH THE GOVERNMENT MAY CONTRIBUTE. THE RATE NOW IN FORCE HAS BEEN FIXED BY THE ACT OF JUNE 19, 1922, 42 STAT. 661, AT NOT TO "EXCEED $15,000 PER MILE EXCLUSIVE OF THE COST OF BRIDGES OF MORE THAN 20 FEET OF CLEAR SPAN.'

ACCORDINGLY, IF THE PROPOSED PROJECT MAY LAWFULLY BE CONSIDERED AS BRIDGE CONSTRUCTION WITHIN THE MEANING OF THE EXPRESSION JUST QUOTED, THE GOVERNMENT MAY CONTRIBUTE AS MUCH AS 50 PERCENT OF THE ESTIMATED COST REGARDLESS OF WHAT THE AMOUNT PER MILE MAY BE; BUT IF THE PROPOSED PROJECT MAY NOT LAWFULLY BE CONSIDERED AS BRIDGE CONSTRUCTION, THE GOVERNMENT'S CONTRIBUTION WOULD BE LIMITED TO FIVE-EIGHTHS OF $15,000.

YOU STATE THE FACTS TO BE AS FOLLOWS:

THE CIRCUMSTANCES ARE AS FOLLOWS: A STEEL TRUSS BRIDGE EXTENDS EASTERLY ACROSS PART OF THE MISSISSIPPI RIVER AT WINONA, MINN., TO THE WEST SHORE OF ISLAND 72 IN THE RIVER, WHERE IT IS JOINED BY A VIADUCT BRIDGE EXTENDING ACROSS THIS ISLAND AND ACROSS THE REST OF THE RIVER CHANNEL TO THE EAST BANK THEREOF IN THE STATE OF WISCONSIN. FROM THIS EAST BANK PROPER OF THE RIVER FLOOD PLAINS EXTEND FOR ABOUT A MILE TO SOME PRECIPITOUS BLUFFS STILL FARTHER TO THE EAST. UNTIL THESE FLOOD PLAINS WERE CUT BY A RAILROAD EMBANKMENT OF THE C.B. AND Q. RAILROAD, THEY WERE ALL FLOODED AT CERTAIN HIGH-WATER SEASONS OF THE YEAR, BUT THIS RAILROAD EMBANKMENT IS HIGH ENOUGH TO FORM A SORT OF LEVEE WHICH KEEPS THE WATER FROM THE PLAINS LYING BETWEEN IT AND THE HIGH BLUFFS TO THE EAST, WHILE THE PORTION OF THE FLOOD PLAINS BETWEEN THE C.B. AND Q. RAILROAD EMBANKMENT AND THE EAST BANK OF THE MISSISSIPPI CONTINUES TO BE FLOODED AT THESE PERIODS. THE RECORDS OF THE UNITED STATES ENGINEER'S OFFICE AT ST. PAUL SHOW THAT THESE FLOOD PLAINS WERE COVERED WITH WATER FROM ONE TO FIVE TIMES EVERY YEAR BUT THREE FROM 1879 TO 1922, INCLUSIVE, THE FLOOD PERIOD CONTINUING FOR SEVERAL WEEKS IN A GREAT MANY INSTANCES. DURING THESE FLOOD PERIODS THE BRIDGE ACROSS THE RIVER CHANNEL BECOMES INACCESSIBLE FROM THE WISCONSIN SIDE, AT LEAST A PART OF THE TIME, AS THE APPROACH NOW PROVIDED BECOMES COVERED WITH WATER, AND IN ORDER TO OVERCOME THIS UNSATISFACTORY SITUATION THE STATE DESIRES TO BUILD AN APPROACH WHICH WILL RENDER THE BRIDGE ACCESSIBLE AT ALL TIMES.

IT WOULD BE POSSIBLE TO CONSTRUCT THIS APPROACH AS A STEEL OR CONCRETE VIADUCT FOR THE FIVE-EIGHTHS OF A MILE FROM THE END OF THE EXISTING BRIDGE ON EACH BANK OF THE RIVER TO THE C.B. AND Q. RAILROAD EMBANKMENT, OR PARTLY AS AN EARTH FILL WITH ONE OR MORE STEEL OR CONCRETE VIADUCT OPENINGS OF MORE THAN 20 FEET CLEAR SPAN EACH, IN EITHER OF WHICH CASES FEDERAL-AID PARTICIPATION WOULD UNQUESTIONABLY BE PERMISSIBLE IN THE ALLOWABLE PERCENTAGE, EVEN THOUGH SUCH PARTICIPATION MIGHT CALL FOR FEDERAL-AID FUNDS VERY GREATLY IN EXCESS OF $20,000 PER MILE. HOWEVER, THE WATER WHICH OVERFLOWS THIS AREA IS ONLY BACK WATER AND HAS NO APPRECIABLE CURRENT, IN VIEW OF WHICH FACT IT IS BELIEVED THAT INSTEAD OF AN EXPENSIVE STEEL OR CONCRETE STRUCTURE, EITHER FOR THE WHOLE OR ANY PART OF THE APPROACH TO BE BUILT, IT WILL BE MORE ECONOMICAL TO BUILD AN EARTH FILL ABOUT SEVEN FEET HIGH WITH A CONCRETE ROAD ON TOP OF IT, SUCH FILL EITHER TO FOLLOW THE PRESENT ROAD OR TO TAKE A MORE DIRECT ROUTE. IT IS ESTIMATED THAT TO CONSTRUCT SUCH AN EARTH-FILL APPROACH WILL COST APPROXIMATELY $80,000. SINCE IT IS REASONABLE TO CONSTRUE THE TERM "BRIDGE" TO INCLUDE NECESSARY APPROACHES THERETO, IT WOULD SEEM TO THIS DEPARTMENT THAT IT MIGHT PROPERLY PAY UP TO 50 PERCENT OF THE COST OF THIS PROPOSED EARTH-FILL APPROACH, EXCEPT THAT IT HAS BEEN SUGGESTED THAT THE PROPRIETY OF SUCH PAYMENT MAY BE QUESTIONED BECAUSE THE APPROACH IS TO CONSIST OF A SOLID EARTH FILL ABOUT FIVE-EIGHTHS OF A MILE IN LENGTH. HOWEVER, IT WOULD SEEM THAT THE LENGTH SHOULD BE CONSIDERED MERELY AS AN INCIDENT, AS THE APPROACHES TO A BRIDGE MUST NECESSARILY EXTEND TO SUCH POINT IN EACH DIRECTION AS THE TOPOGRAPHY MAY REQUIRE IN ORDER THAT THE SAME MAY BE ADEQUATE TO RENDER THE BRIDGE ACCESSIBLE TO AND USABLE BY TRAFFIC AT ALL TIMES.

TWO OTHER SUPPLEMENTAL STATEMENTS HAVE BEEN SUBMITTED UNDER DATES OF JULY 31 AND AUGUST 1, 1924, BY THE CHIEF OF THE BUREAU OF PUBLIC ROADS, SETTING FORTH CERTAIN ENGINEERING FEATURES TO SHOW THE DIFFERENCE BETWEEN THE PROPOSED CONSTRUCTION AND ORDINARY ROAD CONSTRUCTION.

THE ESSENTIAL POINT OF THE FIRST STATEMENT IS THAT THE PROPOSED CONSTRUCTION OF THE EARTH FILL MUST BE OF SUCH MATERIAL AND IN SUCH FORM AS TO WITHSTAND THE ACTION OF THE FLOOD WATERS OF THE ADJACENT RIVER, VARYING MATERIALLY FROM ORDINARY ROAD CONSTRUCTION AND COSTING GREATLY IN EXCESS OF ORDINARY ROAD CONSTRUCTION. BECAUSE OF THIS LARGE DEGREE OF DEPARTURE FROM ORDINARY ROAD CONSTRUCTION IT IS STATED THERE CAN BE NO DIFFERENCE OF OPINION FROM AN ENGINEERING POINT OF VIEW THAT THE PROPOSED EARTH FILL APPROACH SHOULD BE CLASSED AS INHERENTLY APPURTENANT TO THE BRIDGE AND ENTIRELY COMPARABLE WITH ORDINARY BRIDGE APPROACH WORK, DIFFERING ONLY AS TO ITS LENGTH.

THE ESSENTIAL POINT OF THE SECOND STATEMENT IS THAT THE EARTH FILL SHOULD BE CLASSIFIED AS ,APPROACH" CONSTRUCTION BECAUSE OF THE GEOLOGICAL CHARACTERISTICS OF THE MISSISSIPPI RIVER VALLEY AT THIS POINT, THAT IS, ITS WIDTH AND THE FREQUENT FLOOD CONDITION TO WHICH THE VALLEY IS SUBJECTED. BECAUSE OF THESE CONDITIONS IT IS STATED THAT THE ENGINEER MUST CONSIDER THE CROSSING OF THE STREAM VALLEY BETWEEN THE LIMITS ESTABLISHED BY THE KNOWN AND FORESEEN FLOOD CONDITIONS.

IT IS A FUNDAMENTAL RULE OF CONSTRUCTION THAT TERMS APPEARING IN STATUTES MUST BE GIVEN THEIR USUAL AND ORDINARY MEANING UNLESS SOME OTHER MEANING IS EXPRESSLY GIVEN TO THEM. FOR INSTANCE, IN THE ACT OF JUNE 19, 1922, 42 STAT. 658, IT IS PROVIDED THAT THE TERM "BRIDGES" AS USED IN THE APPROPRIATIONS TO AID STATES IN THE CONTRACTION OF RURAL POST ROADS SHALL INCLUDE RAILROAD GRADE SEPARATIONS, WHETHER BY MEANS OF OVERHEAD OR UNDERPASS CROSSINGS.

IT IS, OF COURSE, OBVIOUS THAT THE PROPOSED PROJECT COULD NOT BE CONSIDERED AS A BRIDGE AND COULD BE CONSIDERED AS CONSTITUTING "BRIDGE" CONSTRUCTION ONLY ON THE BASIS OF BEING AN APPROACH TO A BRIDGE.

IT IS WELL SETTLED THAT A BRIDGE INCLUDES THE ABUTMENTS AND APPROACHES NECESSARY TO MAKE IT ACCESSIBLE. THE CLINTON BRIDGE, 10 WALL. 454; UNITED STATES V. CINCINNATI AND M.V.R. CO. ET AL., 134 FED.REP. 353. WHAT CONSTITUTES AN APPROACH DEPENDS ON THE LOCAL CONDITIONS EXISTING IN INDIVIDUAL CASES, 9 CORPUS JURIS 422, CITING THE FOLLOWING DEFINITIONS OF "APPROACHES":

"APPROACHES" MEANS ALL SUCH ARTIFICIAL STRUCTURES AS MAY BE REASONABLY NECESSARY AND CONVENIENT FOR THE PURPOSE OF ENABLING THE PUBLIC TO PASS FROM THE ROAD ON TO THE BRIDGE AND FROM THE BRIDGE ON TO THE ROAD, AND DOES NOT INCLUDE THE HIGHWAY TO A DISTANCE OF ONE HUNDRED FEET FROM EACH END OF THE BRIDGE, AT ALL EVENTS, UNLESS THE ARTIFICIAL STRUCTURES EXTEND SO FAR. TRAVERSY V. GLOUCESTER, 15 ONT. 214, 216.

IN THE PRESENT INSTANCE THERE IS NO BRIDGE PROPOSED TO BE CONSTRUCTED, THE WINONA BRIDGE OVER THE CHANNEL OF THE MISSISSIPPI RIVER HAVING BEEN HERETOFORE CONSTRUCTED. THE GEOLOGICAL CONDITIONS WERE THERE APPARENTLY WHEN THE BRIDGE WAS CONSTRUCTED, AND IT WOULD SEEM THAT THE PRESENT PROJECT, WHILE NO DOUBT DESIRABLE AS AN IMPROVEMENT, COULD NOT IN THE ORDINARY SENSE BE CONSIDERED AS NECESSARY OR ESSENTIAL TO MAKE THE BRIDGE ACCESSIBLE. ALSO THE DISTANCE INVOLVED, WHILE NOT OF ITSELF CONTROLLING, IS AN ELEMENT TO BE CONSIDERED IN APPLYING THE TERM "BRIDGE," AND IN THE PRESENT CASE FIVE-EIGHTHS OF A MILE OF CONSTRUCTION WORK MAY NOT REASONABLY BE CONSIDERED AS AN APPROACH EXCEPT BY APPLICATION OF A VERY UNUSUAL EXPANSION OF THAT TERM. ON THE CONTRARY, THE PROJECT HAS ALL THE CHARACTERISTICS OF ROAD CONSTRUCTION, OUT OF THE ORDINARY TO MEET FLOOD CONDITIONS OVER LOWLANDS, IT IS TRUE, BUT NONE THE LESS ROAD CONSTRUCTION. THE CONSTRUCTION IS IN FACT CAUSED BY A CHANGE IN THE RUNNING DIRECTION OF THE ROAD, NECESSITATING A CHANGE IN ITS GRADE--- THE OBJECT BEING TO MAKE A JUNCTION POINT WHICH THE ROAD DID NOT HERETOFORE MAKE, AND IT IS PROPERLY CLASSED AS ROAD CONSTRUCTION. IT IS NOT BELIEVED THAT CONGRESS INTENDED TO INCLUDE WITHIN THE TERM "BRIDGE" SUCH A PROJECT AS HERE CONTEMPLATED. A MORE DEFINITE EXPRESSION FROM CONGRESS, SUCH AS WAS MADE OF THE RAILROAD CROSSINGS, SHOULD APPEAR TO JUSTIFY THE INCLUSION OF THIS EARTH FILL IN THE TERM "BRIDGE.'

ACCORDINGLY, IT MUST BE HELD THAT THE PROPOSED PROJECT DOES NOT CONSTITUTE BRIDGE CONSTRUCTION WITHIN THE MEANING OF THE EXCEPTION TO THE MAXIMUM AMOUNT PER MILE WHICH THE GOVERNMENT MAY CONTRIBUTE, BUT THAT THE CONSTRUCTION IS SUBJECT TO THE LIMITATION PER MILE FIXED BY THE ACT OF JUNE 19, 1922, VIZ, FIVE-EIGHTHS OF $15,000.