A-86299, JUNE 9, 1937, 16 COMP. GEN. 1061

A-86299: Jun 9, 1937

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THE UNITED STATES IS NOT REQUIRED TO PAY TOLLS FOR ITS USE BY ARMY RECRUITING SERVICE VEHICLES AND PERSONNEL. 1937: THERE WAS RECEIVED. THERE IS INCLOSED HEREWITH. FOR A DECISION IF PAYMENT IS AUTHORIZED. THIS ACCOUNT WAS SUBMITTED TO THE UNDERSIGNED. FOR PAYMENT AND IS REFERRED TO YOU FOR AN ADVANCE DECISION UNDER AUTHORITY OF PARAGRAPH 2. FOR WHICH DECISION IS REQUESTED. IS WHETHER OR NOT THE BRIDGE IN QUESTION IS TO BE HELD AS HAVING BEEN CONSTRUCTED SUBJECT TO THE LIMITATIONS OF THE GENERAL BRIDGE ACT OF MARCH 23. THERE WAS TRANSMITTED WITH YOUR LETTER A FILE OF CORRESPONDENCE INITIATED BY YOUR LETTER OF FEBRUARY 4. FOR REFUND BY THE COMMISSION OF $64.85 WAS EVIDENTLY BASED ON PAYMENTS MADE ON VOUCHERS IN YOUR ACCOUNTS AS FOLLOWS: TABLE VOUCHER: AMOUNT 16 JUNE 1936 .

A-86299, JUNE 9, 1937, 16 COMP. GEN. 1061

BRIDGES - TOLLS - ARMY VEHICLES AND PERSONNEL THE MUNICIPAL BRIDGE SPANNING THE OHIO RIVER AT LOUISVILLE, KENTUCKY, AND JEFFERSONVILLE, INDIANA, HAVING BEEN CONSTRUCTED SUBJECT TO THE PROVISIONS OF THE GENERAL BRIDGE ACT OF 1906, 34 STAT. 84, AND ITS APPROACHES BEING FREE PUBLIC HIGHWAYS, THE UNITED STATES IS NOT REQUIRED TO PAY TOLLS FOR ITS USE BY ARMY RECRUITING SERVICE VEHICLES AND PERSONNEL.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJOR CHARLES LEWIS, UNITED STATES ARMY, JUNE 9, 1937:

THERE WAS RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF MARCH 17, 1937, AS FOLLOWS:

1. THERE IS INCLOSED HEREWITH, FOR A DECISION IF PAYMENT IS AUTHORIZED, A VOUCHER IN FAVOR OF THE LOUISVILLE BRIDGE COMMISSION, JEFFERSONVILLE, INDIANA, IN THE AMOUNT OF $5.00, FOR BRIDGE TOLL TICKETS FOR MOVEMENT OF ARMY RECRUITING SERVICE VEHICLES AND PERSONNEL OVER THE MUNICIPAL BRIDGE SPANNING THE OHIO RIVER AT LOUISVILLE, KENTUCKY, AND JEFFERSONVILLE, INDIANA.

2. THIS ACCOUNT WAS SUBMITTED TO THE UNDERSIGNED, A DISBURSING OFFICER OF THE UNITED STATES, FOR PAYMENT AND IS REFERRED TO YOU FOR AN ADVANCE DECISION UNDER AUTHORITY OF PARAGRAPH 2, ARMY REGULATIONS 35-730 DATED MAY 20, 1930.

3. THE DOUBT IN THE MIND OF THE UNDERSIGNED IN MAKING PAYMENT OF THE VOUCHER, AND FOR WHICH DECISION IS REQUESTED, IS WHETHER OR NOT THE BRIDGE IN QUESTION IS TO BE HELD AS HAVING BEEN CONSTRUCTED SUBJECT TO THE LIMITATIONS OF THE GENERAL BRIDGE ACT OF MARCH 23, 1906 (34 STAT. 84), OR AN ACT OF LIKE IMPORT, SO AS TO ENTITLE THE UNITED STATES TO FREE PASSAGE WITHOUT PAYMENT OF TOLLS FOR MOVEMENT OF ARMY PERSONNEL AND VEHICLES.

THERE WAS TRANSMITTED WITH YOUR LETTER A FILE OF CORRESPONDENCE INITIATED BY YOUR LETTER OF FEBRUARY 4, 1937, TO THE LOUISVILLE BRIDGE COMMISSION IN REFERENCE TO REFUND OF TOLL PAYMENTS TO THE COMMISSION IN THE AMOUNT OF $64.85. YOUR REQUEST OF FEBRUARY 4, 1937, FOR REFUND BY THE COMMISSION OF $64.85 WAS EVIDENTLY BASED ON PAYMENTS MADE ON VOUCHERS IN YOUR ACCOUNTS AS FOLLOWS:

TABLE

VOUCHER: AMOUNT

16 JUNE 1936 --------------------------------- $0.70

17 JUNE 1936 --------------------------------- .80

399 AUGUST 1936 ------------------------------- 6.30

231 SEPTEMBER 1936 ---------------------------- 17.05

83 OCTOBER 1936 ------------------------------ 40.00

THE RECORDS SHOW THAT ON JANUARY 21, 1937, CREDIT FOR PAYMENTS ON VOUCHERS 16 AND 17 WAS SUSPENDED IN THE AUDIT OF THE JUNE 1936 ACCOUNTS, BUT THAT VOUCHERS 399, 231, AND 83 HAVE NOT AS YET BEEN REACHED IN THE AUDIT.

THE REPLY OF FEBRUARY 15, 1937, OF THE CHAIRMAN OF THE LOUISVILLE BRIDGE COMMISSION, TO YOUR LETTER OF FEBRUARY 4, 1937, READS:

YOUR LETTER OF FEBRUARY 4TH OVER THE SIGNATURE OF MAJOR CHARLES LEWIS, COVERING THE SUBJECT OF TOLLS PAID FOR TROOP MOVEMENTS OVER THE LOUISVILLE MUNICIPAL BRIDGE HAS BEEN REFERRED TO ME.

YOUR LETTER REFERS TO SEVERAL SPECIFIC PAYMENTS AND REFUNDS OF THEIR VARIOUS AMOUNTS IS DEMANDED BECAUSE YOUR GENERAL ACCOUNTING OFFICE IN WASHINGTON HAS REFUSED TO ALLOW YOU CREDIT IN YOUR DISBURSING ACCOUNTS. THAT OFFICE IS SAID TO BASE ITS RULING UPON ITS STATEMENT THAT:

"THE UNITED STATES IS NOT REQUIRED TO PAY TOLLS FOR THE MOVEMENT OF TROOPS OR MUNITIONS OF WAR OVER BRIDGES CONSTRUCTED UNDER AUTHORITY OF THE CONGRESS PURSUANT TO THE GENERAL BRIDGE ACT, MAR. 23, 1906, 34 STAT. 84, OR ACTS OF LIKE IMPORT. 16 COMP. GEN. 427.'

I THINK THIS RULING RESULTS FROM A MISUNDERSTANDING OF THE STATUS OF OUR BRIDGE, WHICH WAS NOT CONSTRUCTED UNDER THE GENERAL BRIDGE LAW OF 1906, APPROVED MARCH 23, 1906. ON THE CONTRARY, IT WAS BUILT UNDER A SPECIAL ACT OF THE CONGRESS, APPROVED FEBRUARY 25, 1928, IDENTIFIED AS HOUSE RESOLUTION 9660, AND ENTITLED:

"AN ACT AUTHORIZING THE CITY OF LOUISVILLE, KENTUCKY, TO CONSTRUCT, MAINTAIN, AND OPERATE A TOLL BRIDGE ACROSS THE OHIO RIVER AT OR NEAR SAID CITY.'

THE ACT GRANTS SPECIFIC AUTHORITY TO THE CITY TO FIX AND CHARGE TOLLS GENERALLY FOR PASSAGE OVER THE BRIDGE. THERE IS NO EXCEPTION OR EXEMPTION GRANTED TO ANY USER OF THE BRIDGE IN RESPECT TO THE PAYMENT OF SUCH TOLL. THERE IS ABSOLUTELY NO FREE LIST. SECTION 3 OF THE ACT READS:

"THE SAID CITY OF LOUISVILLE OR SUCH BOARD OR COMMISSION AND THE SUCCESSORS THEREOF ARE HEREBY AUTHORIZED TO FIX AND CHARGE TOLLS FOR TRANSIT, OVER SUCH BRIDGE, AND THE RATES OF TOLLS SO FIXED SHALL BE THE LEGAL RATES UNTIL CHANGED BY THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN THE ACT OF MARCH 23, 1906.'

SECTION 4, FOLLOWING, SPECIFICALLY REQUIRES THAT THE TOLLS CHARGED FOR THE USE OF THE BRIDGE SHALL BE DEVOTED EXCLUSIVELY TO THE PAYMENT OF THE COST OF ITS CONSTRUCTION AND OPERATION, TO THE END THAT IT MAY, IN APPROXIMATELY TWENTY YEARS, BE FULLY PAID FOR AND THROWN OPEN FOR FREE USE. CLEARLY IT WAS CONTEMPLATED THAT THE REALIZATION OF A FREE BRIDGE SHOULD NOT BE POSTPONED OR DELAYED BY ABSOLVING ANY GOVERNMENTAL AGENCIES (EITHER OF THE FEDERAL GOVERNMENT OR KENTUCKY OR INDIANA) FROM THE PAYMENT FOR SUCH USE AS WAS MADE OF THE BRIDGE FACILITIES. THIS THOUGHT IS EMPHASIZED, WE THINK, BY THE FACT THAT THE ONLY PRIVILEGE RESERVED BY THIS ACT TO THE FEDERAL GOVERNMENT ON THE QUESTION OF TOLLS IS THAT WHICH GIVES TO THE SECRETARY OF WAR AUTHORITY TO SUPERVISE THE "RATES" OR TOLL SCHEDULES THAT MAY BE FIXED BY THE CITY OF LOUISVILLE IN ITS ADMINISTRATION OF THE ENTERPRISE. THE SECRETARY IS GIVEN THE AUTHORITY, ACCORDINGLY, TO SUPERVISE THESE RATES AND TO SEE THAT THEY ARE REASONABLE IN THE SAME MANNER AS HE MAY DO IN RESPECT TO BRIDGES CONSTRUCTED UNDER THE ACT OF MARCH 1906. WE QUITE AGREE THAT THE SECRETARY HAS THE AUTHORITY TO CHANGE OUR GENERAL RATE SCHEDULE, IF HE SHOULD DEEM IT UNREASONABLE, BUT WE DO NOT BELIEVE HE HAS OR CLAIMS THE AUTHORITY TO GIVE SPECIAL RATES OR EXEMPTION FROM TOLLS TO ANYONE USING THE BRIDGE, EITHER FOR PRIVATE OR PUBLIC PURPOSES. AS I UNDERSTAND IT, HOWEVER, YOUR COMMUNICATION IS NOT INTENDED TO RAISE ANY QUESTION AS TO THE REASONABLENESS OF OUR RATES, BUT IS SOLELY ADDRESSED TO A CLAIM OF ABSOLUTE EXEMPTION FROM TOLLS FOR MILITARY MOVEMENTS, AND UPON THIS POINT WE BELIEVE THAT YOUR WASHINGTON OFFICE IS IN ERROR.

IT MAY INTEREST YOU TO KNOW THAT THIS QUESTION HAS RECURRED SEVERAL TIMES SINCE THE BRIDGE WAS OPENED IN THE FALL OF 1929, AND, AS I UNDERSTAND IT, THE WAR DEPARTMENT HAS ALWAYS FINALLY COME AROUND TO OUR WAY OF THINKING AND CONSISTENTLY PAID FOR ITS USE OF THE BRIDGE, JUST AS EVERY OTHER PUBLIC AGENCY, FEDERAL AND STATE, HAS DONE.

OBVIOUSLY THIS QUESTION SIMPLY INVOLVES A POINT OF LAW, AND WE DO NOT WANT OR EXPECT TO DEPRIVE THE WAR DEPARTMENT OF ITS LEGAL RIGHTS ANY MORE THAN IT SHOULD WANT TO DEPRIVE US OF OURS. IF YOUR WASHINGTON OFFICE DOES NOT AGREE TO OUR POSITION AS OUTLINED ABOVE, WE, OF COURSE, WILL BE GLAD TO COOPERATE IN EVERY WAY TO HAVE THE POINT OF LAW DETERMINED IN THE PROPER FORUM IN AN AMICABLE WAY.

IT APPEARS THAT THE BRIDGE OVER WHICH TOLLS WERE PAID WAS CONSTRUCTED UNDER THE AUTHORITY OF THE ACT OF FEBRUARY 25, 1928, 45 STAT. 146, SECTION 1 OF WHICH IS AS FOLLOWS:

THAT IN ORDER TO PROMOTE INTERSTATE COMMERCE, IMPROVE THE POSTAL SERVICE, AND PROVIDE FOR MILITARY AND OTHER PURPOSES, THE CITY OF LOUISVILLE, KENTUCKY, OR ANY BOARD OR COMMISSION OF SAID CITY WHICH MAY BE DULY CREATED OR ESTABLISHED FOR THE PURPOSE, BE AND IS HEREBY AUTHORIZED TO CONSTRUCT, MAINTAIN, AND OPERATE A HIGHWAY BRIDGE AND APPROACHES THERETO ACROSS THE OHIO RIVER AT A POINT SUITABLE TO THE INTERESTS OF NAVIGATION, EXTENDING FROM SOME POINT IN THE CITY OF LOUISVILLE, KENTUCKY, ACROSS SAID RIVER TO A POINT OPPOSITE ON THE INDIANA SHORE, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT ENTITLED "AN ACT TO REGULATE THE CONSTRUCTION OF BRIDGES OVER NAVIGABLE WATERS," APPROVED MARCH 23, 1906, AND SUBJECT TO THE CONDITIONS AND LIMITATIONS CONTAINED IN THIS ACT. SECTIONS 2 AND 4 OF THE GENERAL BRIDGE ACT OF MARCH 23, 1906, 34 STAT. 84, 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 SUCH 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.

THE QUESTION OF THE PAYMENT OF TOLLS BY THE GOVERNMENT OVER BRIDGES CONSTRUCTED PURSUANT TO THE GENERAL BRIDGE ACT OF 1906 WAS FULLY CONSIDERED IN THE DECISION OF OCTOBER 26, 1936, 16 COMP. GEN. 427, IN CONNECTION WITH THE QUESTION OF PAYMENT OF TOLLS OVER THE MID HUDSONBRIDGE AT POUGHKEEPSIE, N.Y.--- A BRIDGE CONSTRUCTED UNDER STATUTORY PROVISIONS SUBSTANTIALLY IDENTICAL WITH THOSE HERE INVOLVED. THE FOLLOWING IS QUOTED FROM THAT DECISION:

LANGUAGE SUBSTANTIALLY IDENTICAL WITH SECTION 2 OF THE GENERAL BRIDGE ACT HAVING HAD A SETTLED CONSTRUCTION IN THE ACCOUNTING OFFICES FOR MANY YEARS, THAT SETTLED CONSTRUCTION HAVING BEEN IN THE INTEREST OF THE UNITED STATES, AND THAT CONSTRUCTION NOT HAVING BEEN QUESTIONED IN ANY COURT, IT WOULD REQUIRE MOST COGENT REASONS FOR A MODIFICATION OF THE CONSTRUCTION TO REQUIRE THE UNITED STATES TO PAY TOLLS.

NOR DOES THE CORRECTNESS OF THE CONSTRUCTION ADOPTED IN THE ACCOUNTING OFFICES SEEM TO BE OPEN TO QUESTION. IT WILL BE OBSERVED THAT SECTION 2 OF THE GENERAL BRIDGE ACT, AS IN THE ACTS OF 1862, 1866, AND 1872, PROVIDED THAT THE CHARGES TO THE UNITED STATES FOR THE TRANSMISSION OF THE MAILS, TROOPS, AND MUNITIONS OF WAR SHOULD NOT BE GREATER THAN THE RATE PER MILE OVER THE RAILROAD, ETC., OR PUBLIC HIGHWAY LEADING TO THE BRIDGE. AN ANALYSIS OF THIS LANGUAGE SHOWS THAT THERE WAS AN ASSERTION OF THE RIGHT OF THE UNITED STATES TO FREE PASSAGE OVER BRIDGES SO AUTHORIZED FOR THE MAILS, TROOPS, AND MUNITIONS OF WAR. THE SECTION AUTHORIZED PAYMENT OF THE SAME RATE PER MILE FOR TRANSPORTATION AS OVER THE BALANCE OF THE DISTANCE WHETHER RAILROAD OR PUBLIC HIGHWAY, BUT NOTHING ADDITIONAL FOR THE USE OF THE BRIDGE. UNDER THIS LANGUAGE THE COMMON CARRIER WOULD RECEIVE THE SAME RATE PER MILE FOR THE LENGTH OF THE BRIDGE AS APPLIED FOR THE TRAVEL TO THE BRIDGE; IF A TOLL ROAD LED TO THE BRIDGE, THE TOLL ROAD OR BRIDGE COMPANY COULD CHARGE THE SAME RATE PER MILE OVER THE BRIDGE AS WAS CHARGED FOR THE USE OF THE TOLL ROAD, BUT NOTHING ADDITIONAL FOR THE USE OF THE BRIDGE, AND IF THE PUBLIC HIGHWAY WAS A FREE PUBLIC HIGHWAY, NO CHARGE COULD BE MADE FOR THE USE OF THE BRIDGE. IF THE MAILS, TROOPS, OR MUNITIONS OF WAR WERE MOVED OVER A FREE PUBLIC HIGHWAY BY A PUBLIC OR PRIVATE CARRIER, THE CARRIER MIGHT RECEIVE THE RATE PER MILE CONTRACTED FOR, BUT THE UNITED STATES WOULD PAY NOTHING FOR THE USE OF THE BRIDGE. SO, ALSO, IF THE UNITED STATES ITSELF MOVED ITS MAILS, TROOPS, OR MUNITIONS OF WAR OVER A FREE PUBLIC HIGHWAY LEADING TO THE BRIDGE, THE STATUTE IS CLEAR THAT NOTHING IS TO BE PAID FOR THE TRANSIT OF THE BRIDGE. * * *

SINCE THE BRIDGE IN QUESTION APPEARS TO BE SERVED BY FREE PUBLIC HIGHWAYS AND WAS CONSTRUCTED SUBJECT TO THE PROVISIONS OF THE GENERAL BRIDGE ACT OF 1906, YOU ARE ADVISED THAT FOR REASONS STATED IN THE ABOVE-QUOTED DECISION, PAYMENT ON THE VOUCHER PRESENTED WITH YOUR LETTER IS NOT AUTHORIZED.

IT FOLLOWS, THEREFORE, THAT THE AUDIT ACTION ON VOUCHERS 16 AND 17 OF YOUR JUNE 1936 ACCOUNTS WAS CORRECT, AND IT IS REQUESTED, THEREFORE, THAT REFUND OF THE AMOUNT PAID THEREON BE MADE TO THIS OFFICE PROMPTLY, INCLUDING, ALSO, THE AMOUNT PAID ON VOUCHERS 399, 231, AND 83 HEREINABOVE DESCRIBED.