A-90294, DECEMBER 9, 1937, 17 COMP. GEN. 479

A-90294: Dec 9, 1937

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IS NOT EFFECTIVE AS TO TOLLS CHARGED OVER A BRIDGE CONSTRUCTED UNDER SECTION 9 OF THE ACT OF JULY 2. " AND PAYMENT IS AUTHORIZED OF TOLLS OVER SUCH BRIDGE FOR PASSAGE OF TANKS. THERE WAS SUBMITTED FOR ADVANCE DECISION A VOUCHER IN THE SUM OF $35.45 IN FAVOR OF THE ATCHISON AND EASTERN BRIDGE CO. THE ATCHISON BRIDGE WAS CONSTRUCTED UNDER AUTHORITY OF SECTION 9 OF THE ACT OF JULY 2. WHICH IS AN AMENDMENT OF THE ACT OF JULY 1. AS FOLLOWS: THAT THE GRANTS AFORESAID ARE MADE UPON CONDITION THAT SAID COMPANY SHALL * * * TRANSPORT MAILS. THAT THE GOVERNMENT SHALL AT ALL TIMES HAVE THE PREFERENCE IN THE USE OF THE SAME FOR ALL THE PURPOSES AFORESAID (AT FAIR AND REASONABLE RATES OF COMPENSATION.

A-90294, DECEMBER 9, 1937, 17 COMP. GEN. 479

BRIDGES - TOLLS - STATUTORY PROVISIONS FOR CHARGES "AT FAIR AND REASONABLE RATES OF COMPENSATION" - GOVERNMENT MAILS, TROOPS, ETC. THE ACT OF JUNE 27, 1930, 46 STAT. 821, PROVIDING THAT THE REGULATION OF ALL TOLLS ON BRIDGES AUTHORIZED "PRIOR TO MARCH 23, 1906, BY ACT OF CONGRESS SPECIFICALLY RESERVING TO CONGRESS THE RIGHT TO ALTER, AMEND, OR REPEAL SUCH ACT," SHOULD BE SUBJECT TO PROVISIONS OF THE ACT OF MARCH 23, 1906, 34 STAT. 84, IS NOT EFFECTIVE AS TO TOLLS CHARGED OVER A BRIDGE CONSTRUCTED UNDER SECTION 9 OF THE ACT OF JULY 2, 1864, 13 STAT. 360, AMENDING THE ACT OF JULY 1, 1862, 12 STAT. 489, PROVIDING, RESPECTIVELY, FOR CONSTRUCTION OF BRIDGES AND FOR RAILROAD TRANSPORTATION OF MAILS, TROOPS, ETC., FOR THE GOVERNMENT "AT FAIR AND REASONABLE RATES OF COMPENSATION * * *," AND PAYMENT IS AUTHORIZED OF TOLLS OVER SUCH BRIDGE FOR PASSAGE OF TANKS, TRUCKS, AND MILITARY PERSONNEL EN ROUTE TO MANEUVERS UNDER SECTION 94 OF THE NATIONAL DEFENSE ACT. 17 COMP. GEN. 333, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO BRIG. GEN. LEWIS M. MEANS, UNITED STATES PROPERTY AND DISBURSING OFFICER FOR MISSOURI, DECEMBER 9, 1937:

BY YOUR LETTER OF SEPTEMBER 24, 1937, THERE WAS SUBMITTED FOR ADVANCE DECISION A VOUCHER IN THE SUM OF $35.45 IN FAVOR OF THE ATCHISON AND EASTERN BRIDGE CO. COVERING TOLLS CHARGED FOR USE OF THE ATCHISON BRIDGE BY THE ONE HUNDRED TWENTY-EIGHTH FIELD ARTILLERY TANKS, TRUCKS, AND MEN ON AUGUST 12, 15, 28, AND 29, 1937, WHILE EN ROUTE TO AND FROM THE FOURTH ARMY MANEUVERS HELD AT FORT RILEY, KANS., UNDER SECTION 94 OF THE NATIONAL DEFENSE ACT.

THE ATCHISON BRIDGE WAS CONSTRUCTED UNDER AUTHORITY OF SECTION 9 OF THE ACT OF JULY 2, 1864, 13 STAT. 356 AT 360, WHICH IS AN AMENDMENT OF THE ACT OF JULY 1, 1962, 12 STAT. 489, SECTION 6 OF WHICH PROVIDES, IN PART, AS FOLLOWS:

THAT THE GRANTS AFORESAID ARE MADE UPON CONDITION THAT SAID COMPANY SHALL * * * TRANSPORT MAILS, TROOPS, AND MUNITIONS OF WAR, SUPPLIES, AND PUBLIC STORES UPON SAID RAILROAD FOR THE GOVERNMENT WHENEVER REQUIRED TO DO SO BY ANY DEPARTMENT THEREOF, AND THAT THE GOVERNMENT SHALL AT ALL TIMES HAVE THE PREFERENCE IN THE USE OF THE SAME FOR ALL THE PURPOSES AFORESAID (AT FAIR AND REASONABLE RATES OF COMPENSATION, NOT TO EXCEED THE AMOUNTS PAID BY PRIVATE PARTIES FOR THE SAME KIND OF SERVICE); * * *.

SEE ALSO SECTION 13 OF THE ACT OF JULY 1, 1862, 12 STAT. 495.

SECTION 9 OF THE ACT OF JULY 2, 1864, 13 STAT. 356, AT PAGE 360, PROVIDES, IN PART, AS FOLLOWS:

THAT TO ENABLE ANY ONE OF SAID CORPORATIONS TO MAKE CONVENIENT AND NECESSARY CONNECTIONS WITH OTHER ROADS, IT IS HEREBY AUTHORIZED TO ESTABLISH AND MAINTAIN ALL NECESSARY FERRIES UPON AND ACROSS THE MISSOURI RIVER AND OTHER RIVERS WHICH ITS ROAD MAY PASS IN ITS COURSE; AND AUTHORITY IS HEREBY GIVEN SAID CORPORATION TO CONSTRUCT BRIDGES OVER SAID MISSOURI RIVER, AND ALL OTHER RIVERS FOR THE CONVENIENCE OF SAID ROAD: PROVIDED, THAT ANY BRIDGE OR BRIDGES IT MAY CONSTRUCT OVER THE MISSOURI RIVER, OR ANY OTHER NAVIGABLE RIVER ON THE LINE OF SAID ROAD, SHALL BE CONSTRUCTED WITH SUITABLE AND PROPER DRAWS FOR THE PASSAGE OF STEAMBOATS, AND SHALL BE BUILT, KEPT, AND MAINTAINED AT THE EXPENSE OF SAID COMPANY, IN SUCH MANNER AS NOT TO IMPAIR THE USEFULNESS OF SAID RIVERS FOR NAVIGATION TO ANY GREATER EXTENT THAN SUCH STRUCTURES OF THE MOST APPROVED CHARACTER NECESSARILY DO: * * *

A SIMILAR QUESTION AROSE IN CONNECTION WITH THE OMAHA BRIDGE OF THE UNION PACIFIC RAILWAY CO. BETWEEN OMAHA AND COUNCIL BLUFFS, AND IT WAS HELD BY THE UNITED STATES SUPREME COURT, UNION PACIFIC RAILWAY COMPANY V. THE UNITED STATES, 117 U.S. 355, SUSTAINING THE COURT OF CLAIMS, 20 CT.CLS. 70, THAT SAID BRIDGE, AS A PART OF THE RAILWAY LINE OF THE UNION PACIFIC RAILWAY COMPANY WAS AUTHORIZED BY SECTION 6 OF THE ACT OF JULY 1, 1862, SUPRA, TO RECEIVE COMPENSATION OF FAIR AND REASONABLE RATES, NOT IN EXCESS OF THOS CHARGED TO PRIVATE PARTIES FOR SIMILAR SERVICE, AND WAS NOT SUBJECT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF JULY 25, 1866, 14 STAT. 244, RESTRICTING CHARGES FOR A CERTAIN CLASS OF GOVERNMENT TRANSPORTATION; IN OTHER WORDS, THAT A CERTAIN CLASS OF GOVERNMENT TRANSPORTATION; IN OTHER WORDS, THAT THE ACT OF FEBRUARY 24, 1871, 16 STAT. 430, EXTENDING THE PROVISIONS OF THE ACT OF 1866 TO THE BRIDGE DID NOT APPLY TO RATES OF COMPENSATION TO BE PAID BY THE UNITED STATES BUT THAT OTHER PROVISIONS OF THE ACT OF 1866 AS TO THE CONSTRUCTION OF BRIDGES ONLY WERE EXTENDED.

SEE ALSO UNION PACIFIC R.R. V. HALL ET AL., 91 U.S. 343.

IN 7 COMP.DEC. 882 AND 883, THERE APPEARS THE FOLLOWING:

THE ACTS CITED BY THE CHIEF OF ENGINEERS, SUPRA, UNDER WHICH THE FOLLOWING NAMED BRIDGES WERE BUILT DO NOT SHOW THAT THEY ARE SUBJECT TO ANY RESTRICTIONS RESPECTING CHARGES FOR GOVERNMENT TRANSPORTATION: BRIDGE AT ATCHISON, KANS.

IT DOES NOT APPEAR, THEREFORE, THAT THE ACT OF JUNE 27, 1930, 46 STAT. 821, HAS THE EFFECT OF MAKING THE ACT OF MARCH 23, 1906, 34 STAT. 84, APPLICABLE TO TOLLS CHARGED OVER THE ATCHISON BRIDGE.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED, IS AUTHORIZED IF OTHERWISE CORRECT.

THE DECISION IN A-89417, DATED OCTOBER 13, 1937, 17 COMP. GEN. 333, INVOLVES A DIFFERENT STATUTE, AND THE PRINCIPLE THEREIN APPLIED IS NOT FOR APPLICATION HEREIN.

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