Golden Gate Bridge & Highway Dist. v. United States

• Decision Date: 10 April 1942
• Docket Number: No. 9900.,9900.
• Citation: 125 F.2d 872
• Parties: GOLDEN GATE BRIDGE & HIGHWAY DIST. OF CALIFORNIA, v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

125 F.2d 872 (1942)

GOLDEN GATE BRIDGE & HIGHWAY DIST. OF CALIFORNIA, v. UNITED STATES.

No. 9900.

Circuit Court of Appeals, Ninth Circuit.

February 16, 1942.

Rehearing Denied April 10, 1942.

John L. McNab, of San Francisco, Cal., for appellant.

Norman M. Littell, Asst. Atty. Gen., Charles R. Denny and John F. Cotter, both of Washington, D. C., and Frank J. Hennessy, U. S. Atty., and William E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

MATHEWS, Circuit Judge.

This appeal is from a declaratory judgment which, in an action by appellee, the United States, against appellant, Golden Gate Bridge and Highway District of California,¹ declared that appellee is entitled to "toll free passage over Golden Gate Bridge and the approaches thereto for all traffic of any description by or on its behalf or by or on behalf of any of its departments or agencies on official business."

Golden Gate Bridge and its approaches were constructed by appellant and are maintained and operated by appellant. The bridge spans a strait called the Golden Gate, which is navigable water of the United States lying wholly within the limits of California. Its approaches are State roads of California. The south end of the bridge and the road constituting its south approach are on a military reservation called the Presidio of San Francisco. The north end of the bridge and the road constituting its north approach are on a military reservation called the Fort Baker Reservation. Thus, before commencing construction of the bridge and its approaches, it was necessary to obtain (1) approval of the location and plans of the bridge by the Chief of Engineers and by the Secretary of War² and (2) the Secretary's permit to erect and maintain the ends of the bridge on the reservations and to extend the roads constituting its approaches across the reservations.³

The location and plans of the bridge were approved by the Chief of Engineers on August 9, 1930, and by the Secretary on August 11, 1930. On October 27, 1930, the Secretary granted appellant a permit to erect and maintain the ends of the bridge on the reservations and to extend the roads constituting its approaches across the reservations, subject to certain provisions and conditions. These were set forth in numbered paragraphs. Appellant suggested that changes be made in certain paragraphs of the permit. Accordingly the Secretary, on February 13, 1931, granted appellant an amended permit (hereafter called the permit), paragraphs 6, 11 and 14 of which read as follows:

"6. That civilian employees of the army and navy traveling on Government business under proper military authority, and Government traffic, and all military and naval personnel and their dependents, shall have the use of the bridge and roads free of charge."

"11. * * * All traffic upon said roads and upon said bridge shall be free from any tolls, charges or any form of obstruction by State or other agencies, against military and naval personnel and their dependents, civilians of the army and navy traveling on Government business under military authority, and Government traffic. * * *"

"14. This permit is granted in lieu of and supersedes permit to appellant dated October 27, 1930."

Appellant accepted the permit, constructed the bridge and its approaches and, since completion thereof on May 28, 1937, has maintained and operated the same. The bridge has been and is operated as a public toll bridge, the usual and ordinary toll being 50 cents for each automobile using the bridge and five cents for each passenger in excess of five traveling in such automobile, no charge being made for the use of the approaches. Appellant has not demanded or collected any toll for the use of the bridge by military or naval personnel or their dependents or by civilian employees of the army or navy traveling on Government business under military authority, but has at all times conceded, and now concedes, that all such are entitled to free use of the bridge.

As to whether appellee is entitled to free use of the bridge for Government traffic other than army and navy traffic, a controversy has existed between appellant and appellee since November 13, 1937; appellant contending that the phrase "Government traffic," as used in paragraphs 6 and 11 of the permit, means army and navy traffic only; appellee contending that it means all Government traffic. To settle the controversy, this action was brought. The judgment below upheld appellee's contention. Appellant seeks reversal.

Appellant asks us to construe paragraphs 6 and 11 of the permit and particularly the phrase "Government traffic." The request assumes that the language of paragraphs 6 and 11 is ambiguous, since, otherwise, construction could not be resorted to. 17 C.J.S., Contracts, § 294; 12 Am. Jur., Contracts, § 229. The assumption is unwarranted. As stated in the trial court's opinion:⁴ "The language of the paragraphs under discussion is so clear as to admit of no interpretation or construction. There is nothing ambiguous about a single sentence, phrase, or word. * * * The many cases cited by appellant on the question of construction have no bearing in a case such as this, where the words used are not ambiguous, and the intent of the contracting parties is crystal clear."

It is immaterial, if true, that appellee's counsel conceded in the trial court that the language of paragraphs 6 and 11 is ambiguous. Whether the language is ambiguous or not is a question of law, as to which the trial court was not, nor are we, bound by any concession which counsel may have made. If, however, it were deemed necessary to construe paragraphs 6 and 11, the construction contended for by appellant would be rejected for the following reasons:

In construing these paragraphs (if construction were required), our aim should be to ascertain and give effect to the intention expressed therein. 17 C.J.S., Contracts, § 295; 12 Am.Jur., Contracts, § 227. Clearly that intention was to exempt from all tolls, charges and obstructions (1) all use of the bridge and roads by or on behalf of appellee and (2) all use thereof by military and navy personnel and their dependents, whether on behalf of appellee or not.

The first objective could have been accomplished simply by providing that Government traffic should have the use of the bridge and roads free of charge and be free from obstruction by State or other agencies. However, such a provision, standing alone, would not have accomplished the second objective. To accomplish that objective, a clause was inserted specifically exempting military and naval personnel and their dependents. Without more, however, that clause might have been construed as exempting civilian employees of the army and navy, whether traveling on Government business or not. To avoid that result, a clause was inserted exempting such employees when, and only when, traveling on Government business under military authority.

In each of the paragraphs under consideration, the Secretary spoke of the two armed services as the "army and navy," not as the "Government," and spoke of their personnel as "military...