Almond v. Day, 4642
| Decision Date | 26 April 1957 |
| Docket Number | No. 4642,4642 |
| Parties | J. LINDSAY ALMOND, JR., ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
Francis C. Lee, Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the petitioner.
George D. Gibson (John W. Riley; R. Allan Wimbish; Hunton, Williams, Gay, Moore & Powell, on brief), for the respondent.
(Oscar L. Shewmake; John C. Goddin; William M. Blackwell; David J. Mays; Henry T. Wickham; Shewmake, Gary, Goddin & Blackwell; Tucker, Mays, Moore & Reed, for Richmond-Greyhound Lines, Inc., amicus curiae).
(William C. Seibert, for State Corporation Commission, amicus curiae).
(Edward L. Breeden, Jr.; Robert R. MacMillan; Breeden, Howard & MacMillan, for the Elizabeth River Tunnel District, amicus curiae).
This is a petition for a writ of mandamus filed by the Attorney General of Virginia against the State Comptroller to determine the validity of the provision in Code, § 33-253, Acts 1954, ch. 319, p. 389, authorizing the State Highway Commission to provide 'bus facilities for the transportation of passengers through or over' the bridge-tunnel project being constructed across Hampton Roads. When the Comptroller expressed doubt as to the constitutionality of the provision and his authority to issue warrants upon the State Treasury for the payment of the cost of such facilities, the present proceeding was filed pursuant to Code, § 8-714, to settle the question and direct the issuance of the necessary warrants.
The facts are not in dispute. At the present time, pursuant to Code, § 33-228, as amended, 1 the State Highway Commission is constructing a bridge-tunnel project over and under the waters of Hampton Roads. The project includes a tunnel 1.4 miles in length under the water, from an island just west of Old Point on the north side of the channel to an island just west of Fort Wool on the south side of the channel. Connecting bridges lead from the north portal of the tunnel to the city of Hampton and from the south portal to Willoughby Spit in the city of Norfolk. From these respective terminals roads are under construction to connect with the State and federal highways. When completed the bridge-tunnel project will become an integral part of the State highway system, furnishing a convenient and quick way of passage between the cities of Newport News, Warwick, Hampton and the territory to the north, and the cities of Norfolk, Virginia Beach and the territory beyond to the south.
The cost of the project, $58,500,000, is to be financed by the sale of long-term bonds which are to be paid out of tolls charged for its use. Code, § 33-229, Acts 1954, ch. 319, p. 389.
At present the Department of Highways operates two ferries across Hampton Roads as connecting links in the highway system and paralleling the route of the bridge-tunnel project. One of these ferries runs from the city of Newport News on the north to Pine Beach near the Naval Operating Base in the city of Norfolk on the south, and the other from Old Point on the north to Willoughby Spit in the city of Norfolk on the south. Upon the opening of the bridge-tunnel project both of these ferries will be abandoned.
The record before us shows that in the construction of the bridge-tunnel project no provision is made for the passage of pedestrians. There are no walkways through the tunnel or along the approaches for their use, and they will not be permitted to use the crossing. 2
At present 3,000 pedestrians per day use the ferries. These are mainly local patrons going to and from work. It is estimated that upon the completion of the project some of these will effect a crossing by joining 'group riding pools,' leaving about 1,800 persons per day for whom some method of transportation over the project must be provided. Inasmuch as a traffic count shows that the peak of pedestrian traffic comes in the morning and afternoon, a flexible schedule of transportation will be necessary.
To meet this situation, Code, § 33-253, Acts 1954, ch. 319, p. 389, provides:
'* * * For the purposes of this § 33-253 the word 'project' shall, in relation to the project described in said paragraph (j), include * * * bus facilities for the transportation of passengers through or over said project if the Commission shall deem it advisable to * * * acquire such bus facilities; and the term 'cost of the project' shall, * * * include the cost of * * * providing bus facilities if the Commission shall deem it expedient to * * * acquire such facilities as a part of the project described in said paragraph (j). * * *'
Pursuant to this authority the State Highway Commission proposes to provide and put into operation a shuttle bus system running from a terminal on LaSalle avenue in the city of Hampton to a terminal either at Willoughby Spit or at Ocean View in the city of Norfolk. The proposed bus operation will extend a distance of from six to nine miles, depending upon the location of the Norfolk terminal. The location of these terminals will afford passengers using the bridge-tunnel project access to the local transit systems. Six busses will be required to provide the necessary service upon schedules varying with traffic conditions. A single garage, located in the city of Hampton, will be provided for the storage, servicing and maintenance of the equipment. It is estimated that the total cost of constructing the garage and acquiring the busses will amount to $315,000, and that thirty-one employees will be required to operate and maintain the bus system.
The prospectus of the project places the estimated annual cost of the proposed bus operation at $155,000, and the estimated revenue therefrom at $165,000. Thus passengers are to be transported over the project at little more than the cost of the operation.
The Richmond-Greyhound Lines, Incorporated, a motor vehicle common carrier, has been granted by the State Corporation Commission a certificate of public convenience and necessity to transport passengers and their baggage, mail and express between the cities of Norfolk and Warwick, serving also the cities of Hampton and Newport News, by way of the bridge-tunnel project, effective upon its opening.
The question presented to us is whether the statutory provision authorizing the State Highway Commission to provide and operate this bus facility for the transportation of passengers through or over the project violates Section 185 of the Virginia Constitution. The pertinent portion of that section reads thus:
'Neither the credit of the State, nor of any county, city or town, shall be, directly or indirectly, under any device or pretense whatsoever, granted to or in aid of any person, association, or corporation, nor shall the State, or any county, city, or town subscribe to or become interested in the stock or obligations of any company, association or corporation, for the purpose of aiding in the construction or maintenance of its work; nor shall the State become a party to or become interested in any work of internal improvement, except public roads and public parks, or engage in carrying on any such work; nor assume any indebtedness of any county, city, or town, nor lend its credit to the same; * * *.' (Italics supplied.)
We are particularly concerned with the interpretation and application of the italicized portion of the section. The precise question presented is whether the State Highway Commission, an arm of the State, may acquire and operate this proposed bus facility, or whether such acquisition and operation must be left to private enterprise.
The case has been ably briefed and argued on both sides. The position of the Attorney General, that such proposed bus operation does not violate the constitutional provision, is supported by the amicus curiae brief of the Elizabeth River Tunnel District, which operates a similar bus facility through the Norfolk-Portsmouth tunnel.
The position of the Comptroller, that such proposed bus operation does violate the constitutional provision, is supported by the amicus curiae briefs of the State Corporation Commission and the Richmond-Greyhound Lines, Incorporated.
It is argued by and on behalf of the Attorney General that the proposed bus operation is not within the spirit and purpose of the restrictive provision in Section 185; that in engaging in such operation the State is not engaging in or carrying on a 'work of internal improvement' within the meaning of the section, but is performing a governmental function incidental and necessary to the operation of the bridge-tunnel project which is a link in the State highway system. Moreover, it is said, this proposed bus facility is by the terms of Code, § 33-253, as amended, made a vital part of the project itself and without which the project, as an essential link in the State highway system, will be incomplete in that it furnishes no facilities for the accommodation of pedestrians. Hence, it is said, the proposed bus facility is a part of the public road itself and as such is expressly excluded from the restrictive provision.
It is argued on behalf of the Comptroller that the constitutional restriction is broad and inclusive, with only two exceptions, 'public roads and public parks'; that the proposed bus facility is not a part of the State's 'public roads'; that the historical background of and reasons for the adoption of the section show that one of its plain purposes is to prohibit the State from engaging in the public transportation business and other public utility businesses, and to leave such businesses to private enterprise. Therefore, it is said, the proposed bus operation violates the letter and spirit of the restrictive provision.
It is an elementary principle of constitutional law that the General Assembly has...
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