B-7154, DECEMBER 15, 1939, 19 COMP. GEN. 582

B-7154: Dec 15, 1939

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MUNITIONS OF WAR FREE OF CHARGE OVER BRIDGES CONSTRUCTED UNDER ITS AUTHORITY WHEN NO TOLLS ARE CHARGED FOR USE OF ROADS LEADING TO SUCH BRIDGES WILL NO LONGER BE FOLLOWED BY THE GENERAL ACCOUNTING OFFICE. - THAT THE GOVERNMENT WAS NOT ENTITLED TO FREE USE OF SUCH BRIDGES FOR SUCH GOVERNMENT TRANSPORTATION. WITH REQUEST FOR DECISION WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED. THE QUESTION INVOLVED IS WHETHER THE UNITED STATES IS LIABLE FOR THE PAYMENT OF SUCH TOLLS. THE AUTHORITY FOR CONSTRUCTING THE BRIDGE ACROSS SANDUSKY BAY IS CONTAINED IN THE ACT APPROVED MAY 5. AS FOLLOWS: THAT THE CONSENT OF CONGRESS IS HEREBY GRANTED TO G. ARE HEREBY AUTHORIZED TO FIX AND CHARGE TOLLS FOR TRANSIT OVER SUCH BRIDGE AND THE RATES SO FIXED SHALL BE THE LEGAL RATES UNTIL CHANGED BY THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN SUCH ACT OF MARCH 23.

B-7154, DECEMBER 15, 1939, 19 COMP. GEN. 582

BRIDGES - TOLLS - GOVERNMENT LIABILITY - GENERAL BRIDGE ACT THE DECISIONS OF THE ACCOUNTING OFFICERS TO THE EFFECT THAT THE GENERAL BRIDGE ACT OF MARCH 23, 1906, 34 STAT. 84, AUTHORIZES THE TRANSPORTATION OF GOVERNMENT MAIL, TROOPS, AND MUNITIONS OF WAR FREE OF CHARGE OVER BRIDGES CONSTRUCTED UNDER ITS AUTHORITY WHEN NO TOLLS ARE CHARGED FOR USE OF ROADS LEADING TO SUCH BRIDGES WILL NO LONGER BE FOLLOWED BY THE GENERAL ACCOUNTING OFFICE, IT HAVING BEEN JUDICIALLY DECIDED, IN EFFECT, IN THE RECENT CASE OF GOUAX V. BOVAY, 105 F./2D) 256--- CERTIORARI DENIED BY THE SUPREME COURT--- THAT THE GOVERNMENT WAS NOT ENTITLED TO FREE USE OF SUCH BRIDGES FOR SUCH GOVERNMENT TRANSPORTATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJOR L. W. MADDOX, UNITED STATES ARMY, DECEMBER 15, 1939:

THERE HAS BEEN REFERRED TO THIS OFFICE BY THE CHIEF OF FINANCE YOUR LETTER OF OCTOBER 13, 1939, AND VOUCHER IN FAVOR OF THE STATE BRIDGE COMMISSION OF OHIO IN THE AMOUNT OF $13.25, WITH REQUEST FOR DECISION WHETHER PAYMENT ON THE VOUCHER IS AUTHORIZED. THE VOUCHER COVERS TOLLS FOR THE MOVEMENT OF MILITARY EQUIPMENT, CONSISTING OF 21 TRUCKS, OVER THE SANDUSKY BAY BRIDGE ON AUGUST 7, 1939, AND THE QUESTION INVOLVED IS WHETHER THE UNITED STATES IS LIABLE FOR THE PAYMENT OF SUCH TOLLS.

THE AUTHORITY FOR CONSTRUCTING THE BRIDGE ACROSS SANDUSKY BAY IS CONTAINED IN THE ACT APPROVED MAY 5, 1926, 44 STAT. 402, WHICH PROVIDES, IN PART, AS FOLLOWS:

THAT THE CONSENT OF CONGRESS IS HEREBY GRANTED TO G. S. BECKWITH, OF CLEVELAND, OHIO, HIS HEIRS, LEGAL REPRESENTATIVES, AND ASSIGNS, TO CONSTRUCT, MAINTAIN, AND OPERATE A BRIDGE AND APPROACHES THERETO ACROSS SANDUSKY BAY, AT A POINT SUITABLE TO THE INTERESTS OF NAVIGATION, AT OR NEAR BAY BRIDGE, IN THE COUNTY OF ERIE, IN THE STATE OF OHIO, 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.

SEC. 2. THE SAID G. S. BECKWITH, HIS HEIRS, LEGAL REPRESENTATIVES, AND ASSIGNS, ARE HEREBY AUTHORIZED TO FIX AND CHARGE TOLLS FOR TRANSIT OVER SUCH BRIDGE AND THE RATES SO FIXED SHALL BE THE LEGAL RATES UNTIL CHANGED BY THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN SUCH ACT OF MARCH 23, 1906.

SEC. 3. AFTER THE DATE OF COMPLETION OF SUCH BRIDGE, AS DETERMINED BY THE SECRETARY OF WAR, EITHER THE STATE OF OHIO, ANY POLITICAL SUBDIVISION THEREOF WITHIN WHICH ANY PART OF SUCH BRIDGE IS LOCATED, OR TWO OR MORE OF THEM JOINTLY, MAY AT ANY TIME ACQUIRE AND TAKE OVER ALL RIGHT, TITLE, AND INTEREST IN SUCH BRIDGE AND APPROACHES, AND INTERESTS IN REAL PROPERTY NECESSARY THEREFOR, BY PURCHASE, OR BY CONDEMNATION IN ACCORDANCE WITH THE LAW OF SUCH STATE GOVERNING THE ACQUISITION OF PRIVATE PROPERTY FOR PUBLIC PURPOSES BY CONDEMNATION. * * * ( ITALICS SUPPLIED.) IT IS REPORTED THE PAYEE OF THE VOUCHER IN QUESTION, THE STATE BRIDGE COMMISSION OF OHIO, ACQUIRED THE BRIDGE FROM THE SANDUSKY BAY BRIDGE CO., LAWFUL ASSIGNEE OF G. S. BECKWITH.

IT SHOULD BE NOTED THAT THE CONSENT OF CONGRESS WAS CONDITIONED ON THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF THE SANDUSKY BAY BRIDGE IN ACCORDANCE WITH THE GENERAL BRIDGE ACT APPROVED MARCH 23, 1906, 34 STAT. 84, WHICH PROVIDES, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

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. 3. THAT ALL RAILROAD COMPANIES DESIRING THE USE OF ANY RAILROAD BRIDGE BUILT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL BE ENTITLED TO EQUAL RIGHTS AND PRIVILEGES RELATIVE TO THE PASSAGE OF RAILWAY TRAINS OR CARS OVER THE SAME AND OVER THE APPROACHES THERETO UPON PAYMENT OF A REASONABLE COMPENSATION FOR SUCH USE; AND IN CASE OF ANY DISAGREEMENT BETWEEN THE PARTIES IN REGARD TO THE TERMS OF SUCH USE OR THE SUMS TO BE PAID ALL MATTERS AT ISSUE SHALL BE DETERMINED BY THE SECRETARY OF WAR UPON HEARING THE ALLEGATIONS AND PROOFS SUBMITTED TO HIM.

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 TRUCKS INVOLVED IN THE PRESENT CASE ARE "MUNITIONS OF WAR" WITHIN THE MEANING OF THE GENERAL BRIDGE ACT. 16 COMP. GEN. 1091; 17 ID. 333. HOWEVER, IT APPEARS THE DOUBT IN THIS MATTER ARISES AS THE RESULT OF A CONFLICT BETWEEN DECISIONS OF THE ACCOUNTING OFFICERS AND CERTAIN COURTS WITH RESPECT TO THE PROPER INTERPRETATION OF THE GENERAL BRIDGE ACT TO CASES IN WHICH THERE IS NO CHARGE FOR THE USE OF THE PUBLIC HIGHWAY LEADING TO THE BRIDGE CONSTRUCTED, OPERATED, AND MAINTAINED IN ACCORDANCE WITH THE PROVISIONS OF THE SAID ACT, WHICH, IT IS UNDERSTOOD, IS THE SITUATION HERE.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY CONSTRUED THE GENERAL BRIDGE ACT AS AUTHORIZING THE TRANSPORTATION OF GOVERNMENT MAIL, TROOPS, AND MUNITIONS OF WAR FREE OF CHARGE OVER BRIDGES CONSTRUCTED UNDER ITS AUTHORITY WHEN NO TOLLS ARE CHARGED FOR USE OF THE ROADS LEADING TO SUCH BRIDGES. SEE 16 COMP. GEN. 427; ID. 1024; ID. 1061; ID. 1091; A- 75335, A-89720, FEBRUARY 24, 1938; A-97375, OCTOBER 25, 1938; A-99875, JANUARY 3, 1939; AND B-3590, JUNE 9, 1939. THE BASIS FOR SUCH CONSTRUCTION BY THE ACCOUNTING OFFICERS, AND THE HISTORY OF LEGISLATION RELATIVE TO THE REGULATION AND CONSTRUCTION OF BRIDGES OVER NAVIGABLE WATERS UNDER THE CONSTITUTIONAL AUTHORITY OF THE CONGRESS TO REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE SEVERAL STATES, IS SET FORTH FULLY IN THE DECISION PUBLISHED AT 16 COMP. GEN. 427. THE SAID DECISION WAS ISSUED PRIOR TO ANY JUDICIAL DETERMINATION OF THE QUESTION INVOLVED.

IN THE RECENT CASE OF GOUAX V. BOVAY, 105 F./2D) 256, DECIDED JULY 6, 1939, THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD, IN EFFECT, THAT THE GOVERNMENT WAS NOT ENTITLED TO FREE USE OF BRIDGES CONSTRUCTED IN ACCORDANCE WITH THE GENERAL BRIDGE ACT OF 1906 IN THE TRANSMISSION OF THE MAILS, TROOPS, AND MUNITIONS OF WAR, EVEN THOUGH USE OF THE PUBLIC HIGHWAYS LEADING TO SUCH BRIDGES WAS FREE. WITH RESPECT TO THIS POINT THE COURT STATED:

SECTION 4 FULLY COVERS THE MATTER OF TOLL CHARGES, WHICH ARE ACCURATELY DESCRIBED AS FOR THE ,TRANSIT" OF ENGINES, VEHICLES, AND PASSENGERS. SECTION 3 RELATES TO THE CHARGES THE BRIDGE MAY MAKE FOR ITS USE BY RAILROADS. SECTION 2 WE ARE PERSUADED IS NOT DIRECTED AT ALL TO CHARGES MADE BY THE BRIDGE COMPANY FOR "TRANSIT," BUT TO CHARGES MADE BY CARRIERS AGAINST THE UNITED STATES FOR THE "TRANSMISSION" OF THE MAIL OR "TRANSPORTATION" OF TROOPS AND MUNITIONS ACROSS THE BRIDGE. THE BRIDGE COMPANY DOES NOT TRANSMIT OR TRANSPORT THESE, BUT MERELY PERMITS THE TRANSIT OF THEM. THESE CARRIERS ARE BY SECTION 2 FORBIDDEN TO CHARGE THE GOVERNMENT A HIGHER RATE PER MILE FOR CARRYING ACROSS THE BRIDGE THAN THEY CHARGE FOR CARRYING ON RAILROAD, STREET RAILROAD, OR PUBLIC HIGHWAY, AS THE CASE MAY BE. THE MAILS HAVE USUALLY BEEN CARRIED UNDER CONTRACTS, WHETHER ON STAGE COACHES, BY STAR ROUTES, BY RAILROAD, OR MORE LATELY BY STREET RAILWAYS, MOTOR BUSSES, AND TRUCKS, USUALLY ON A MILEAGE BASIS. THE MILEAGE BASIS IS FIXED FOR RAILROADS IN R.S. SEC. 3998. WE SUPPOSE THAT TROOPS AND MUNITIONS TOO ARE TRANSPORTED ON A MILEAGE BASIS USUALLY. SECTION 2 THUS MAKES THE BRIDGE A PART OF THE RAILROAD OR HIGHWAY IN CONTRACTS FOR TRANSPORTATION. THE TOLLS TO BE PAID TO THE BRIDGE COMPANY FALL UNDER SECTIONS 3 AND 4. SECTION 2 DOES NOT TOUCH THE CASE WHERE THE UNITED STATES TRANSPORT IN GOVERNMENT VEHICLES, TROOPS AND MUNITIONS. THEIR TRANSIT IS SUBJECT TO THE TOLLS FIXED BY THE BRIDGE COMPANY OR THE SECRETARY OF WAR.

* * * WE THINK THE NEW CONSTRUCTION PUT FORWARD, THAT SEC. 2 REGULATES BRIDGE CHARGES WHENEVER ANYONE CARRIES THE MAIL, TROOPS, OR MUNITIONS, AND THAT NO CHARGES ARE TO BE MADE IF APPROACH IS OVER A FREE HIGHWAY, WHETHER ORIGINALLY FREE OR RECENTLY MADE SO, IS UNREASONABLE, TENDS TO THE TAKING OF THE USE OF PRIVATE PROPERTY WITHOUT JUST COMPENSATION, AND RESTS UPON LANGUAGE TOO DOUBTFUL TO UPHOLD IT. * * *

THE SUPREME COURT DENIED CERTIORARI IN THIS CASE. 7 U.S. LAW WEEK 476 ( NOVEMBER 6, 1939). ALSO, SEE THE CASES OF UNITED STATES V. COLUMBIA RIVER -LONGVIEW BRIDGE COMPANY, 99 F./2D) 287; AND LOUISVILLE BRIDGE COMMISSION V. UNITED STATES, COURT OF CLAIMS NO. 43749, DECIDED NOVEMBER 6, 1939, IN EACH OF WHICH IT WAS HELD THE UNITED STATES WAS NOT EXEMPT FROM THE PAYMENT OF TOLLS IN SUCH CASES.

UNDER THE CIRCUMSTANCES THE DECISIONS OF THE ACCOUNTING OFFICERS TO THE EFFECT THAT THE GENERAL BRIDGE ACT OF 1906 AUTHORIZES THE TRANSPORTATION OF GOVERNMENT MAIL, TROOPS, AND MUNITIONS OF WAR FREE OF CHARGE OVER BRIDGES CONSTRUCTED UNDER ITS AUTHORITY WHEN NO TOLLS ARE CHARGED FOR USE OF ROADS LEADING TO SUCH BRIDGES WILL NO LONGER BE FOLLOWED BY THIS OFFICE.

THE VOUCHER IN QUESTION IS RETURNED HEREWITH AND PAYMENT THEREON IS AUTHORIZED IF OTHERWISE PROPER.