A-85116, JUNE 21, 1937, 16 COMP. GEN. 1091

A-85116: Jun 21, 1937

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THERE IS NO AUTHORITY FOR PAYMENT OF TOLL CHARGES OVER BRIDGES CONSTRUCTED UNDER AUTHORITY OF SAID ACT. WHERE THE APPROACHES LEADING TO THE BRIDGES ARE FREE-PUBLIC HIGHWAYS. AS FOLLOWS: REFERENCE IS MADE TO VARIOUS NOTICES OF EXCEPTION IN WHICH EXCEPTION IS TAKEN TO THE PAYMENT BY THIS OFFICE OF BRIDGE TOLLS TO VARIOUS BRIDGE COMPANIES IN PENNSYLVANIA FOR THE USE OF SUCH BRIDGES BY THE PENNSYLVANIA NATIONAL GUARD INCIDENT TO OVERLAND TRAVEL TO AND FROM CAMPS OF INSTRUCTION. CONSIDERABLE DIFFICULTY IS BEING EXPERIENCED BY THIS OFFICE IN THE COLLECTION OF THESE PAYMENTS. THE BRIDGE COMPANIES ARE APPARENTLY BEWILDERED BY THE FACT THAT A PRIVATELY OWNED BRIDGE CAN BE USED BY THE TROOPS OF UNITED STATES FREE OF CHARGE WHILE A FREE BRIDGE IS PROVIDED BY THE COMMONWEALTH OF PENNSYLVANIA FOR THE GENERAL USE OF THE PUBLIC.

A-85116, JUNE 21, 1937, 16 COMP. GEN. 1091

BRIDGES - TOLLS - NATIONAL GUARD TO AND FROM CAMPS OF INSTRUCTION THE TRUCKS AND OTHER AUTOMOTIVE EQUIPMENT ASSIGNED TO THE SUPPLY TRAINS OF THE PENNSYLVANIA NATIONAL GUARD WHILE MOVING TO AND FROM CAMPS OF INSTRUCTION UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED, BEING "MUNITIONS OF WAR OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 2 OF THE GENERAL BRIDGE ACT OF MARCH 23, 1906, 34 STAT. 85, THERE IS NO AUTHORITY FOR PAYMENT OF TOLL CHARGES OVER BRIDGES CONSTRUCTED UNDER AUTHORITY OF SAID ACT, AND SUBJECT TO ITS CONDITIONS AND LIMITATIONS, WHERE THE APPROACHES LEADING TO THE BRIDGES ARE FREE-PUBLIC HIGHWAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO LIEUTENANT COLONEL LEO A. LUTTRINGER, UNITED STATES PROPERTY AND DISBURSING OFFICER, JUNE 21, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 6, 1937, AS FOLLOWS:

REFERENCE IS MADE TO VARIOUS NOTICES OF EXCEPTION IN WHICH EXCEPTION IS TAKEN TO THE PAYMENT BY THIS OFFICE OF BRIDGE TOLLS TO VARIOUS BRIDGE COMPANIES IN PENNSYLVANIA FOR THE USE OF SUCH BRIDGES BY THE PENNSYLVANIA NATIONAL GUARD INCIDENT TO OVERLAND TRAVEL TO AND FROM CAMPS OF INSTRUCTION.

THIS OFFICE HAS READ WITH INTEREST YOUR DECISION, NO. A-75335, DATED OCTOBER 26, 1936. CONSIDERABLE DIFFICULTY IS BEING EXPERIENCED BY THIS OFFICE IN THE COLLECTION OF THESE PAYMENTS. THE BRIDGE COMPANIES ARE APPARENTLY BEWILDERED BY THE FACT THAT A PRIVATELY OWNED BRIDGE CAN BE USED BY THE TROOPS OF UNITED STATES FREE OF CHARGE WHILE A FREE BRIDGE IS PROVIDED BY THE COMMONWEALTH OF PENNSYLVANIA FOR THE GENERAL USE OF THE PUBLIC. IN THIS CONNECTION, YOU ARE ADVISED THAT THE STATE OF PENNSYLVANIA HAS PROVIDED FREE BRIDGES OVER THE SUSQUEHANNA RIVER AT VARIOUS POINTS INCLUDING THE TWO MAIN BRANCHES OF THIS RIVER, AND IT IS, THEREFORE, POSSIBLE TO CROSS THE RIVER WITHOUT PAYING TOLL. HOWEVER, THESE TOLL BRIDGES WERE USED BY THE NATIONAL GUARD OF PENNSYLVANIA BECAUSE THEY WERE ON A MORE DIRECT ROUTING THAN THE FREE BRIDGES. IT WAS, THEREFORE, IN THE INTERESTS OF PUBLIC ECONOMY TO USE A TOLL BRIDGE RATHER THAN TO RUN A CONVOY MANY MILES OUT OF ITS COURSE FOR THE PURPOSE OF SECURING FREE PASSAGE OVER THE RIVER. HOWEVER, IT IS POINTED OUT THAT FREE PASSAGE WAS OBTAINABLE TO THE NATIONAL GUARD OF PENNSYLVANIA BUT WAS NOT USED AND, IN THIS INSTANCE, IT WOULD APPEAR UNFAIR TO USE PRIVATE PROPERTY WITHOUT PROPER REIMBURSEMENT THEREFOR. IT IS DESIRED THAT YOUR VIEWS ON THIS MATTER BE FURNISHED THIS OFFICE AT AN EARLY DATE.

WHILE SPECIFIC REFERENCE WAS NOT MADE IN THE LETTER TO THE VOUCHERS UPON WHICH THE PAYMENT OF TOLLS IS QUESTIONED, IT IS INDICATED BY THE RECORDS THAT THE INVOLVED VOUCHERS AND THE PAYMENTS TO WHICH EXCEPTIONS WERE TAKEN IN THE AUDIT COVER TOLL CHARGES ON TRUCKS, STATION WAGONS, OTHER MOTOR VEHICLES, ETC., BELONGING TO THE UNITED STATES AS FOLLOWS:

CHART

VOUCHER PAYEE STRUCTURE AMOUNT

215-JULY 1936 HARRISBURG BRIDGE CO MARKET STREET BRIDGE,

HARRISBURG, PA. $3.40

729-AUGUST 1936 ---- DO ------------ ---- DO ------------ 35.10 1176- SEPTEMBER 1936 ---- DO ---------------- DO ------------ 13.35

216-JULY 1936 CLARK'S FERRY BRIDGE CLARK'S FERRY BRIDGE,

COMPANY DUNCANNON, PA. 14.50

644-AUGUST 1936 ---- DO ------------ ---- DO ------------ 72.55

645-AUGUST 1936 PEOPLES BRIDGE CO WALNUT STREET BRIDGE,

HARRISBURG, PA. 4.10

666-AUGUST 1936 SUNBURY BRIDGE CO SUNBURY BRIDGE,

SUNBURY, PA. 2.40

THE PAYMENT IN EACH INSTANCE WAS MADE FROM FUNDS APPROPRIATED BY THE CONGRESS FOR THE NATIONAL GUARD IN CONNECTION WITH TRANSPORTATION OF THE EQUIPMENT TO AND FROM THE CAMPS OF INSTRUCTION AT INDIANTOWN GAP, PENNSYLVANIA, UNDER THE PROVISIONS OF SECTION 67 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF APRIL 6, 1928, 45 STAT. 406, AND THE QUESTION PRESENTED IS WHETHER THE GOVERNMENT IS LEGALLY REQUIRED TO PAY TOLL CHARGES FOR THE TRANSMISSION OF SUCH IMPEDIMENTA WHILE BEING USED IN CONNECTION WITH THE TRAINING OF THE NATIONAL GUARD.

IT APPEARS THAT AUTHORITY TO CONSTRUCT, MAINTAIN, AND OPERATE THE MARKET STREET BRIDGE ACROSS THE SUSQUEHANNA RIVER WAS GRANTED BY THE ACT OF FEBRUARY 7, 1925, 43 STAT. 814; TO CONSTRUCT, MAINTAIN, AND OPERATE THE CLARK'S FERRY BRIDGE ACROSS THE SUSQUEHANNA RIVER WAS GRANTED BY THE ACT OF MARCH 27, 1924, 43 STAT. 30; TO CONSTRUCT, MAINTAIN, AND OPERATE THE SUNBURY BRIDGE ACROSS THE SUSQUEHANNA RIVER "IN ORDER TO IMPROVE THE POSTAL SERVICE AND PROVIDE FOR MILITARY AND OTHER PURPOSES" WAS GRANTED BY THE ACT OF MARCH 7, 1928, 45 STAT. 244, 245, SAID AUTHORIZATIONS IN EACH GRANT BEING EXPRESSLY IN ACCORDANCE WITH THE GENERAL BRIDGE ACT, APPROVED MARCH 23, 1906, 34 STAT. 84, ET. SEQ., AND SUBJECT TO THE CONDITIONS AND LIMITATIONS CONTAINED IN THAT ACT.

THE APPLICABLE PROVISIONS OF THE GENERAL BRIDGE ACT OF MARCH 23, 1906, CODIFIED AS TITLE 33, U.S.C. 491 ET SEQ., ARE SECTIONS 2 AND 4, WHICH, INSOFAR AS HERE MATERIAL, PROVIDE:

SEC. 2. THAT ANY BRIDGE BUILT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL BE A LAWFUL STRUCTURE AND SHALL BE RECOGNIZED AND KNOWN AS A POST ROUTE, UPON WHICH NO HIGHER CHARGE SHALL BE MADE FOR THE TRANSMISSION OVER THE SAME OF THE MAILS, THE TROOPS, AND THE MUNITIONS OF WAR OF THE UNITED STATES THAN THE RATE PER MILE PAID FOR THE TRANSPORTATION OVER ANY RAILROAD, STREET RAILWAY, OR PUBLIC HIGHWAY LEADING TO SAID BRIDGE; AND THE UNITED STATES SHALL HAVE THE RIGHT TO CONSTRUCT, MAINTAIN, AND REPAIR, WITHOUT ANY CHARGE THEREFOR, TELEGRAPH AND TELEPHONE LINES ACROSS AND UPON SAID BRIDGE AND ITS APPROACHES; AND EQUAL PRIVILEGES IN THE USE OF SAID BRIDGE AND ITS APPROACHES SHALL BE GRANTED TO ALL TELEGRAPH AND TELEPHONE COMPANIES.

SEC. 4. * * * IF TOLLS SHALL BE CHARGED FOR THE TRANSIT OVER ANY BRIDGE CONSTRUCTED UNDER THE PROVISIONS OF THIS ACT, OF ENGINES, CARS, STREET CARS, WAGONS, CARRIAGES, VEHICLES, ANIMALS, FOOT PASSENGERS, OR OTHER PASSENGERS, SUCH TOLLS SHALL BE REASONABLE AND JUST, AND THE SECRETARY OF WAR MAY, AT ANY TIME, AND FROM TIME TO TIME, PRESCRIBE THE REASONABLE RATES OF TOLL FOR EACH TRANSIT OVER SUCH BRIDGE, AND THE RATES SO PRESCRIBED SHALL BE THE LEGAL RATES AND SHALL BE THE RATES DEMANDED AND RECEIVED FOR SUCH TRANSIT.

THESE SAME STATUTORY PROVISIONS WERE BEFORE THIS OFFICE FOR CONSIDERATION IN CONNECTION WITH THE LIABILITY OF THE UNITED STATES FOR THE PAYMENT OF TOLLS OVER THE MID-HUDSON BRIDGE AT POUGHKEEPSIE IN NEW YORK IN THE MOVEMENT OF ITS TROOPS AND MUNITIONS OF WAR OVER THE BRIDGE AND IT WAS HELD IN DECISIONS DATED OCTOBER 26, 1936, PUBLISHED 16 COMP. GEN. 427 (QUOTING FROM THE SYLLABUS):

THE UNITED STATES IS NOT REQUIRED TO PAY TOLLS FOR THE MOVEMENT OF ITS MAILS, TROOPS, AND MUNITIONS OF WAR OVER BRIDGES CONSTRUCTED UNDER AUTHORITY OF THE CONGRESS PURSUANT TO THE GENERAL BRIDGE ACT OF MARCH 23, 1906, 34 STAT. 84, OR ACTS OF LIKE IMPORT.

IT WAS ALSO HELD IN DECISION A-83578, DATED MAY 24, 1937, PUBLISHED 16 COMP. GEN. 1024, THAT THE GENERAL BRIDGE ACT OF MARCH 23, 1906, RELIEVING THE GOVERNMENT OF TOLL CHARGES FOR THE TRANSPORTATION OF ITS MAILS, TROOPS, AND MUNITIONS OF WAR WHERE THE APPROACHES TO THE BRIDGES ARE FREE PUBLIC HIGHWAYS HAVING BEEN EXPRESSLY MADE APPLICABLE BY THE ACT OF JUNE 27, 1930, 46 STAT. 821, TO BRIDGES CONSTRUCTED PRIOR THERETO UNDER ACTS SPECIFICALLY RESERVING TO THE CONGRESS THE RIGHT TO ALTER, AMEND, OR REPEAL THE AUTHORIZATION, THERE COULD BE NO LEGAL OBLIGATION IMPOSED UPON THE UNITED STATES TO PAY TOLL CHARGES FOR TRANSMISSION THERE OVER OF RURAL LETTER CARRIERS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

IF THE SUPPLY TRAINS IN CUSTODY OF THE NATIONAL GUARD WHILE MOVING TO AND FROM THE CAMP OF INSTRUCTION AT INDIANTOWN GAP, FOR WHICH TOLL CHARGES WERE IMPOSED AND PAID ON THE ABOVE MENTIONED VOUCHERS, ARE "MUNITIONS OF WAR OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 2 OF THE GENERAL BRIDGE ACT OF MARCH 23, 1906, THERE CLEARLY WAS NO AUTHORITY IN THE BRIDGE COMPANIES, WHOSE BRIDGES WERE CONSTRUCTED UNDER AUTHORITY OF THAT ACT, TO CHARGE TOLLS AGAINST THE UNITED STATES. SECTION 1 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 15, 1933, 48 STAT. 153, PROVIDES:

THAT THE ARMY OF THE UNITED STATES SHALL CONSIST OF THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, THE OFFICERS' RESERVE CORPS, THE ORGANIZED RESERVES, AND THE ENLISTED RESERVE CORPS.

SECTION 71 ADDED BY SECTION 9 OF THE ACT OF JUNE 15, 1933, 48 STAT. 157, PROVIDES:

(A) "NATIONAL GUARD" OR "NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA" MEANS THAT PORTION OF THE ORGANIZED MILITIA OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, ACTIVE AND INACTIVE, FEDERALLY RECOGNIZED AS PROVIDED IN THIS ACT AND ORGANIZED, ARMED, AND EQUIPPED IN WHOLE OR IN PART AT FEDERAL EXPENSE AND OFFICERED AND TRAINED UNDER PARAGRAPH 16, SECTION 8, ARTICLE I OF THE CONSTITUTION.

(B) "NATIONAL GUARD OF THE UNITED STATES" MEANS A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES COMPOSED OF THOSE FEDERALLY RECOGNIZED UNITS AND ORGANIZATIONS AND PERSONS DULY APPOINTED AND COMMISSIONED IN THE ACTIVE AND INACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF OFFICE PRESCRIBED IN SECTION 73 OF THIS ACT, AND WHO HAVE BEEN DULY APPOINTED BY THE PRESIDENT IN THE NATIONAL GUARD OF THE UNITED STATES, AS PROVIDED IN THIS ACT, AND OF THOSE OFFICERS AND WARRANT OFFICERS APPOINTED AS PRESCRIBED IN SECTIONS 75 AND 111 OF THIS ACT, AND OF THOSE PERSONS DULY ENLISTED IN THE NATIONAL GUARD OF THE UNITED STATES AND OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA WHO HAVE TAKEN AND SUBSCRIBED TO THE OATH OF ENLISTMENT PRESCRIBED IN SECTION 70 OF THIS ACT.

SECTION 82 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 17 OF THE ACT OF JUNE 15, 1933, 48 STAT. 160, PROVIDES THAT THE NATIONAL GUARD SHALL, AS FAR AS PRACTICABLE, BE UNIFORMED, ARMED, AND EQUIPPED WITH THE SAME TYPE OF UNIFORMS, ARMS, AND EQUIPMENT AS ARE OR SHALL BE PROVIDED BY THE REGULAR ARMY.

SECTION 83 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, PROVIDES:

THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO PROCURE, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BY PURCHASE OR MANUFACTURE, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS MADE BY CONGRESS, AND TO ISSUE FROM TIME TO TIME TO THE NATIONAL GUARD, UPON REQUISITION OF THE GOVERNORS OF THE SEVERAL STATES AND TERRITORIES OR THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, SUCH NUMBER OF UNITED STATES SERVICE ARMS, WITH ALL ACCESSORIES, FIELD-ARTILLERY MATERIEL, ENGINEER, COAST ARTILLERY, SIGNAL, AND SANITARY MATERIEL, ACCOUTERMENTS, FIELD UNIFORMS, CLOTHING, EQUIPAGE, PUBLICATIONS, AND MILITARY STORES OF ALL KINDS, INCLUDING PUBLIC ANIMALS, AS ARE NECESSARY TO ARM, UNIFORM, AND EQUIP FOR FIELD SERVICE THE NATIONAL GUARD IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA: PROVIDED, THAT AS A CONDITION PRECEDENT TO THE ISSUE OF ANY PROPERTY AS PROVIDED FOR BY THIS ACT, THE STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA DESIRING SUCH ISSUE SHALL MAKE ADEQUATE PROVISION, TO THE SATISFACTION OF THE SECRETARY OF WAR, FOR THE PROTECTION AND CARE OF SUCH PROPERTY: PROVIDED FURTHER, THAT, WHENEVER IT SHALL BE SHOWN TO THE SATISFACTION OF THE SECRETARY OF WAR THAT THE NATIONAL GUARD OF ANY STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA, IS PROPERLY ORGANIZED, ARMED, AND EQUIPPED FOR FIELD SERVICE, FUNDS ALLOTTED TO THAT STATE, TERRITORY, OR DISTRICT FOR THE SUPPORT OF ITS NATIONAL GUARD MAY BE USED FOR THE PURCHASE, FROM THE WAR DEPARTMENT, OF ANY ARTICLE ISSUED BY ANY OF THE SUPPLY DEPARTMENTS OF THE ARMY.

SECTION 87 PROVIDES THAT ALL MILITARY PROPERTY ISSUED TO THE NATIONAL GUARD SHALL REMAIN THE PROPERTY OF THE UNITED STATES, AND SECTION 90, AS AMENDED, PROVIDES FOR THE ALLOTMENT OF FUNDS AND AUTHORIZES THE EMPLOYMENT OF CARETAKERS TO CARE FOR THE UNITED STATES MATERIEL, ANIMALS, ARMAMENT, AND EQUIPMENT ISSUED TO NATIONAL GUARD ORGANIZATIONS.

IN CONSTRUING WHO AND WHAT WERE TROOPS AND MUNITIONS OF THE UNITED STATES AS USED IN SECTION 3 OF THE ACT OF JULY 25, 1866, 14 STAT. 244, AUTHORIZING THE CONSTRUCTION OF THE QUINCY BRIDGE, WHICH SECTION CONTAINS LANGUAGE SUBSTANTIALLY THE SAME AS THAT CONTAINED IN SECTION 2 OF THE GENERAL BRIDGE ACT OF 1906, IT WAS STATED IN A DECISION OF THE FORMER COMPTROLLER OF THE TREASURY, DATED FEBRUARY 18, 1901, 7 COMP. DEC. 880, AS FOLLOWS:

* * * THE TERM "TROOPS OF THE UNITED STATES" COMPREHENDS THE ENTIRE MILITARY, INCLUDING NAVAL, FORCE OF THE UNITED STATES--- THAT IS, THE ARMY AND NAVY AND ALL PARTIES CONNECTED THEREWITH, INCLUDING THEIR CIVILIAN EMPLOYEES AND AGENTS--- AND THE TERM "MUNITIONS OF WAR OF THE UNITED STATES" COMPREHENDS ALL "MATERIAL USED IN WAR FOR DEFENSE OR FOR ATTACK; WAR MATERIAL, MILITARY AND NAVAL STORES OF ALL KINDS; AMMUNITION, PROVISIONS.' (SEE DECISION OF JULY 19, 1900, SUPRA; DIGEST SECOND COMP. DEC., VOL. 3, SEC. 1399; SECOND COMP. MS. DEC., VOL. 62, P. 407, AND CENTURY DICTIONARY.) THE EQUIPMENT WHICH THE UNITED STATES ISSUES TO THE NATIONAL GUARD FOR ITS TRAINING, INCLUDING EQUIPMENT AND PROPERTY OF THE NATURE FOR WHICH TOLL CHARGES WERE PAID, WOULD SEEM TO COME WITHIN THE DEFINITION OF "MUNITIONS OF WAR OF THE UNITED STATES" QUOTED ABOVE, AND THEREFORE WITHIN SECTION 2 OF THE GENERAL BRIDGE ACT OF MARCH 23, 1906, 34 STAT. 84, AND THERE WAS NO AUTHORITY FOR PAYMENT OF SUCH TOLL CHARGES WHERE THE APPROACHES LEADING TO SAID BRIDGES ARE FREE PUBLIC HIGHWAYS. ACCORDINGLY, THE AMOUNTS PAID AS TOLLS FOR TRANSMISSION OF SAID MUNITIONS OF WAR OF THE UNITED STATES OVER THE MARKET STREET BRIDGE, THE CLARK'S FERRY BRIDGE, AND THE SUNBURY BRIDGE WILL BE DISALLOWED IN YOUR ACCOUNTS. THE WALNUT STREET BRIDGE AT HARRISBURG, PA., APPEARS TO HAVE BEEN CONSTRUCTED UNDER AUTHORITY OF THE STATE OF PENNSYLVANIA AND NOT SUBJECT TO THE PROVISIONS OF THE GENERAL BRIDGE ACT OF 1906. THE PAYMENT MADE TO THE PEOPLES BRIDGE COMPANY ON VOUCHER 645 OF YOUR AUGUST 1936 ACCOUNTS WILL NOT BE FURTHER QUESTIONED.