B-142579, JUNE 2, 1960, 39 COMP. GEN. 807

B-142579: Jun 2, 1960

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IS CONSTRUED TO INCLUDE INCORPORATED TOWNS IN VIEW OF THE GENERAL MEANING OF "MUNICIPAL" AS APPLICABLE TO TOWNS. INCORPORATED VILLAGES AND IN LIGHT OF THE LEGISLATIVE HISTORY WHICH SHOWS A CONGRESSIONAL INTENT THAT THE REGULATORY PREROGATIVES OF INCORPORATED MUNICIPALITIES ARE NOT TO BE ENCROACHED UPON. THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION REQUESTED AN OPINION REGARDING APPLICATION OF THE TERM "INCORPORATED MUNICIPALITIES" AS THAT TERM IS USED IN SECTION 131 (B). WITH RESPECT TO AGREEMENTS FOR THE CONTROL OF OUTDOOR ADVERTISING ALONG THE INTERSTATE SYSTEM OF HIGHWAYS THAT: (B) THE SECRETARY OF COMMERCE IS AUTHORIZED TO ENTER INTO AGREEMENTS WITH STATE HIGHWAY DEPARTMENTS (INCLUDING SUCH SUPPLEMENTARY AGREEMENTS AS MAY BE NECESSARY) TO CARRY OUT THE NATIONAL POLICY SET FORTH IN SUBSECTION (A) OF THIS SECTION WITH RESPECT TO THE INTERSTATE SYSTEM WITHIN THE STATE.

B-142579, JUNE 2, 1960, 39 COMP. GEN. 807

HIGHWAYS - ADVERTISING CONTROL - MUNICIPALITY EXEMPTION THE TERM "INCORPORATED MUNICIPALITIES" AS USED IN THE HIGHWAY ADVERTISING CONTROL EXEMPTION IN 23 U.S.C. 131 (B), WHICH EXCLUDES HIGHWAYS TRAVERSING COMMERCIAL AND INDUSTRIAL ZONES WITHIN BOUNDARIES OF INCORPORATED MUNICIPALITIES, IS CONSTRUED TO INCLUDE INCORPORATED TOWNS IN VIEW OF THE GENERAL MEANING OF "MUNICIPAL" AS APPLICABLE TO TOWNS, CITIES, AND INCORPORATED VILLAGES AND IN LIGHT OF THE LEGISLATIVE HISTORY WHICH SHOWS A CONGRESSIONAL INTENT THAT THE REGULATORY PREROGATIVES OF INCORPORATED MUNICIPALITIES ARE NOT TO BE ENCROACHED UPON.

TO THE SECRETARY OF COMMERCE, JUNE 2, 1960:

BY LETTER OF APRIL 11, 1960, THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION REQUESTED AN OPINION REGARDING APPLICATION OF THE TERM "INCORPORATED MUNICIPALITIES" AS THAT TERM IS USED IN SECTION 131 (B), TITLE 23, UNITED STATES CODE. SECTION 131 (B), AS AMENDED BY SECTION 106 OF THE FEDERAL-AID HIGHWAY ACT OF 1959, 73 STAT. 612, PROVIDES, WITH RESPECT TO AGREEMENTS FOR THE CONTROL OF OUTDOOR ADVERTISING ALONG THE INTERSTATE SYSTEM OF HIGHWAYS THAT:

(B) THE SECRETARY OF COMMERCE IS AUTHORIZED TO ENTER INTO AGREEMENTS WITH STATE HIGHWAY DEPARTMENTS (INCLUDING SUCH SUPPLEMENTARY AGREEMENTS AS MAY BE NECESSARY) TO CARRY OUT THE NATIONAL POLICY SET FORTH IN SUBSECTION (A) OF THIS SECTION WITH RESPECT TO THE INTERSTATE SYSTEM WITHIN THE STATE. ANY SUCH AGREEMENT SHALL INCLUDE PROVISIONS FOR REGULATION AND CONTROL OF THE ERECTION AND MAINTENANCE OF ADVERTISING SIGNS, DISPLAYS, AND OTHER ADVERTISING DEVICES IN CONFORMITY WITH THE STANDARDS ESTABLISHED IN ACCORDANCE WITH SUBSECTION (A) OF THIS SECTION AND MAY INCLUDE, AMONG OTHER THINGS, PROVISIONS FOR PRESERVATION OF NATURAL BEAUTY, PREVENTION OF EROSION, LANDSCAPING, REFORESTATION, DEVELOPMENT OF VIEWPOINTS FOR SCENIC ATTRACTIONS THAT ARE ACCESSIBLE TO THE PUBLIC WITHOUT CHARGE, AND THE ERECTION OF MARKERS, SIGNS, OR PLAQUES, AND DEVELOPMENT OF AREAS IN APPRECIATION OF SITES OF HISTORICAL SIGNIFICANCE. AGREEMENTS ENTERED INTO BETWEEN THE SECRETARY OF COMMERCE AND STATE HIGHWAY DEPARTMENTS UNDER THIS SECTION SHALL NOT APPLY TO THOSE SEGMENTS OF THE INTERSTATE SYSTEM WHICH TRAVERSE COMMERCIAL OR INDUSTRIAL ZONES WITHIN THE PRESENTLY EXISTING BOUNDARIES OF INCORPORATED MUNICIPALITIES WHEREIN THE USE OF REAL PROPERTY ADJACENT TO THE INTERSTATE SYSTEM IS SUBJECT TO MUNICIPAL REGULATION OR CONTROL, OR WHICH TRAVERSE OTHER AREAS WHERE THE LAND USE, AS OF THE DATE OF APPROVAL OF THIS ACT, IS CLEARLY ESTABLISHED BY STATE LAW AS INDUSTRIAL OR COMMERCIAL: AND ANY SUCH SEGMENT EXCLUDED FROM THE APPLICATION OF SUCH STANDARDS SHALL NOT BE CONSIDERED IN COMPUTING THE INCREASE OF THE FEDERAL SHARE PAYABLE ON ACCOUNT THEREOF.

IT IS STATED THAT PROPER CONSTRUCTION OF THIS LANGUAGE IS PARTICULARLY UNCERTAIN IN CONNECTION WITH THE TOWN FORM OF GOVERNMENT PECULIAR TO THE NEW ENGLAND STATES. IT IS POINTED OUT THAT THE STATE OF MAINE IS DIVIDED INTO COUNTIES, DISTRICTS, TOWNS, PLANTATIONS, AND UNORGANIZED TERRITORY; THAT UNDER MAINE LAW, A "TOWN" INCLUDES CITIES AND PLANTATIONS AND THE WORD "MUNICIPALITY" INCLUDES CITIES, TOWNS AND PLANTATIONS. IT IS FURTHER POINTED OUT THAT TOWNS IN MAINE ARE GENERALLY RURAL IN CHARACTER AND THAT IN MAINE, AS WELL AS IN CONNECTICUT AND VERMONT, INCORPORATED VILLAGES MAY BE WITHIN TOWN LIMITS.

THE ASSISTANT SECRETARY ALSO POINTS OUT THE POSSIBILITY OF A PROBLEM ARISING, PARTICULARLY WITH RESPECT TO THOSE STATES THAT ARE ENTIRELY COMPOSED OF INCORPORATED AREAS PURSUANT TO STATE LAW, INVOLVING THE REZONING TO COMMERCIAL OR INDUSTRIAL USE OF RESIDENTIAL OR OTHER LAND WITHIN MUNICIPAL BOUNDARIES AFTER AGREEMENTS ARE ENTERED INTO COVERING THE CONTROL OF ADVERTISING IN SUCH RESIDENTIAL OR OTHER AREAS. THIS PROBLEM, IT IS SAID, MAY RESULT FROM THE WORDING OF THE LAW WHICH EXCLUDES THOSE SEGMENTS OF THE INTERSTATE SYSTEM TRAVERSING ONLY COMMERCIAL OR INDUSTRIAL ZONES WITHIN THE "PRESENTLY EXISTING" BOUNDARIES BUT WHICH MAKES NO PROVISION WITH RESPECT TO PROPERTY THAT MIGHT BE REZONED. IT IS STATED THAT SUBSEQUENT REZONING OF RESIDENTIAL LAND TO COMMERCIAL OR INDUSTRIAL USE WITHIN THE PRESENTLY EXISTING BOUNDARIES OF AN INCORPORATED MUNICIPALITY MAY, THEREFORE, REQUIRE REVISION OF AGREEMENTS AND REPAYMENT BY STATES OF ANY AMOUNTS COMPRISING THE INCREASED FEDERAL SHARE ON ACCOUNT OF ADVERTISING CONTROL FOR AFFECTED INTERSTATE SYSTEM PROJECTS.

IN VIEW OF THE MANDATORY REQUIREMENT FOR THE EXCLUSION OF COMMERCIAL AND INDUSTRIAL ZONES WITHIN THE PRESENTLY EXISTING BOUNDARIES OF INCORPORATED MUNICIPALITIES, OUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION:

IS THE INCORPORATED TOWN TYPIFIED BY TOWNS IN THE NEW ENGLAND STATES AN INCORPORATED MUNICIPALITY WITHIN THE MEANING OF 23 U.S.C. 131 (B/?

LEGISLATION FOR THE CONTROL OF ADVERTISING OVER AREAS ADJACENT TO THE INTERSTATE SYSTEM WAS FIRST ENACTED AS SECTION 12 OF THE FEDERAL AID HIGHWAY ACT OF 1958, 72 STAT. 95, NOW CODIFIED AS 23 U.S.C. 131. PRIOR TO ITS AMENDMENT BY THE ACT OF 1959, SECTION 131 (B) PROVIDED IN PART THAT:

* * * UPON APPLICATION OF THE STATE, ANY SUCH (ADVERTISING CONTROL) AGREEMENT MAY, WITHIN THE DISCRETION OF THE SECRETARY OF COMMERCE, CONSISTENT WITH THE NATIONAL POLICY, PROVIDE FOR EXCLUDING FROM APPLICATION OF THE NATIONAL STANDARDS SEGMENTS OF THE INTERSTATE SYSTEM WHICH TRAVERSE INCORPORATED MUNICIPALITIES WHEREIN THE USE OF REAL PROPERTY ADJACENT TO THE INTERSTATE SYSTEM IS SUBJECT TO MUNICIPAL REGULATION OR CONTROL, OR WHICH TRAVERSE OTHER AREAS WHERE THE LAND USE IS CLEARLY ESTABLISHED BY STATE LAW AS INDUSTRIAL OR COMMERCIAL * * *

THE LEGISLATIVE HISTORY OF THE INITIAL PROVISION FOR ADVERTISING CONTROL SHOWS THAT IT WAS THE INTENTION OF CONGRESS TO RECOGNIZE AND PRESERVE UNIMPAIRED THE STATUS OF INCORPORATED MUNICIPALITIES SO FAR AS THEIR RIGHTS TO CONTROL ADVERTISING WITHIN THEIR CORPORATE LIMITS WERE CONCERNED. IN HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC WORKS, UNITED STATES SENATE, 85TH CONGRESS, 2D SESSION ON S. 963, D. 3041 AND S. 3218, BILLS RELATING TO THE CONTROL OF ADVERTISING ON INTERSTATE HIGHWAYS, THE STATEMENTS BY THE UNDER SECRETARY OF COMMERCE FOR TRANSPORTATION AND THE LEGISLATIVE COUNSEL FOR THE AMERICAN AUTOMOBILE ASSOCIATION POINTED OUT THAT S. 3218 AS PRESENTED MADE THE NATIONAL POLICY FOR ADVERTISING CONTROL INAPPLICABLE TO SECTIONS OF THE INTERSTATE SYSTEM WITHIN INCORPORATED MUNICIPALITIES. SEE PAGES 12 AND 38 OF THE HEARINGS. THE STATEMENT OF POLICY IN THE BILL CALLED FOR CONTROL OF ROADSIDE ADVERTISING ALONG PORTIONS OF THE INTERSTATE SYSTEM OUTSIDE INCORPORATED MUNICIPALITIES; AND IT WAS POINTED OUT THAT BY REFERRING GENERALLY TO SUCH MUNICIPALITIES, PROVISIONS FOR ADVERTISING CONTROL MIGHT BE RENDERED INAPPLICABLE TO CERTAIN AREAS WHERE INCORPORATED MUNICIPALITIES SUCH AS TOWNS AND BOROUGHS CONSTITUTE THE BASIC POLITICAL SUBDIVISIONS OF A STATE, AND WHERE, ACCORDINGLY, THE BOUNDARIES OF SUCH MUNICIPALITIES ARE CONTIGUOUS THROUGHOUT THE STATE. IT WAS FOR THIS REASON THAT SECTION 12 OF THE FEDERAL-AID HIGHWAY ACT OF 1958, AS FINALLY ENACTED, PROVIDED FOR THE EXERCISE OF DISCRETION BY THE SECRETARY OF COMMERCE IN EXCLUDING FROM APPLICATION OF THE NATIONAL ADVERTISING STANDARDS SEGMENTS OF THE INTERSTATE SYSTEM TRAVERSING INCORPORATED MUNICIPALITIES WHEREIN THE USE OF REAL PROPERTY ADJACENT THERETO WAS SUBJECT TO MUNICIPAL REGULATION OR CONTROL OR TRAVERSING OTHER LAND AREAS WHERE THE LAND USE WAS CLEARLY ESTABLISHED BY STATE LAW AS INDUSTRIAL OR COMMERCIAL.

HOWEVER, THE PROVISION FOR THE EXERCISE OF DISCRETION WAS DELETED BY SECTION 106 OF THE 1959 ACT AND THE MANDATORY PROVISION QUOTED ABOVE INSERTED IN ITS STEAD. BUT IN MAKING THE EXCLUSION OF INCORPORATED MUNICIPALITIES MANDATORY, IT WAS RECOGNIZED THAT SOME STATES, PARTICULARLY THOSE IN NEW ENGLAND, WERE COMPRISED OF VIRTUALLY CONTIGUOUS AREAS OF INCORPORATED MUNICIPALITIES, AND IT WAS FOR THAT VERY REASON THAT EXCLUSION OF THE CONTROL PROVISIONS WAS LIMITED TO THOSE SEGMENTS OF THE INTERSTATE SYSTEM WHICH TRAVERSE COMMERCIAL OR INDUSTRIAL ZONES. 105 CONG. REC. 18251 (1959).

IN COMMON PARLANCE, AS WELL AS IN LEGISLATIVE AND JUDICIAL LANGUAGE, THE WORD "MUNICIPALITY" IS APPLIED TO TOWNS, AS WELL AS TO CITIES AND INCORPORATED VILLAGES. MILLER V. TOWN OF JACOBS, 35 N.W. 324, 325. THE ORDINARY SIGNIFICANCE OF THE TERM "MUNICIPAL CORPORATION" IS A CITY, TOWN, OR VILLAGE. HOWELL V. PORT OF NEW YORK AUTHORITY, 34 F.1SUPP. 797, 800. A "MUNICIPAL CORPORATION" IS A BODY ESTABLISHED BY LAW CHIEFLY TO REGULATE LOCAL INTERNAL AFFAIRS OF CITY, TOWN, OR DISTRICT INCORPORATED. FIRST SUBURBAN WATER UTILITY DISTRICT. V. MCCANLESS, 146 S.W.2D. 948, 950. SEE ALSO STATE EX REL. KOONTZ V. BOARD OF PARK COM-RS OF CITY OF HUNTINGTON, 47 S.E.2D 689, 694; NEUENSCHWANDER V. WASHINGTON SUBURBAN SANITARY COMMISSION, 48 A.2D 593, 597; AND COMMONWEALTH V. TOWN OF HUDSON, 52 N.E.2D 566, 572. WE BELIEVE THAT IN VIEW OF THE GENERAL MEANING OF THE TERM ,MUNICIPAL CORPORATION" AND IN LIGHT OF THE LEGISLATIVE HISTORY--- PARTICULARLY SINCE IT SHOWS AN INTENT OF CONGRESS THAT REGULATORY PREROGATIVES OF INCORPORATED MUNICIPALITIES ARE NOT TO BE ENCROACHED UPON- -- THERE IS NO BASIS FOR EXCLUDING THE "INCORPORATED TOWN" FROM THE MEANING OF THER TERM "INCORPORATED MUNICIPALITIES" AS THAT TERM IS USED IN 23 U.S.C. 131 (B).

ACCORDINGLY, NOTWITHSTANDING THAT THERE MAY ARISE PROBLEMS IN ADMINISTERING THE STATUTE, THE ANSWER TO THE QUESTION PRESENTED IS IN THE AFFIRMATIVE.