City of Burlington v. Turner, 72-1133

• Decision Date: 02 January 1973
• Docket Number: 72-1136.,No. 72-1133,72-1133
• Citation: 471 F.2d 120
• Parties: The CITY OF BURLINGTON, an Iowa municipal corporation, Plaintiff-Appellee, v. Francis C. TURNER, as Administrator, Federal Highway Administration, et al., Defendants-Appellants. Lucy OLSON, et al., Intervenors-Appellants, v. The CITY OF BURLINGTON, an Iowa municipal corporation, Plaintiff-Appellee, v. Francis C. TURNER, as Administrator, Federal Highway Administration, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.2d 120 (1973)

The CITY OF BURLINGTON, an Iowa municipal corporation, Plaintiff-Appellee, v. Francis C. TURNER, as Administrator, Federal Highway Administration, et al., Defendants-Appellants.

Lucy OLSON, et al., Intervenors-Appellants, v. The CITY OF BURLINGTON, an Iowa municipal corporation, Plaintiff-Appellee, v. Francis C. TURNER, as Administrator, Federal Highway Administration, et al., Defendants-Appellants.

Nos. 72-1133, 72-1136.

United States Court of Appeals, Eighth Circuit.

Submitted October 16, 1972.

Decided January 2, 1973.

Thomas G. Wilson, Atty., Dept. of Justice, Washington, D. C., for defendants-appellants.

Robert E. Stine, Springfield, Ill., for plaintiff-appellee.

Donald H. Sitz, Davenport, Iowa, for amicus curiae.

Before LARAMORE, United States Court of Claims Senior Judge, and BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

The City of Burlington, Iowa (Burlington) brought this action for a declaratory judgment and injunctive relief to challenge a determination by the Administrator of the Federal Highway Administration (Administrator) relating to tolls to be charged for the use of the MacArthur Bridge, which connects Iowa and Illinois at Burlington. The trial court determined that the opinions and orders of the Administrator relating to the standards to be followed in setting proper tolls, together with a later order prescribing the toll schedule, were arbitrary, capricious and without an adequate basis in law or in the record, and the Administrator was enjoined from enforcing its orders relating to these tolls. Judge Hanson, in a published opinion, City of Burlington v. Turner, 336 F. Supp. 594 (S.D.Iowa 1972), made comprehensive findings of fact and conclusions of law, and no useful purpose would be served in repeating or paraphrasing them in this opinion. We have carefully examined the record and the findings of fact and law made by Judge Hanson; and with the exception of the Remedy and Order, we affirm on the basis of his opinion together with the additional reasons hereinafter set forth.

The MacArthur Bridge was constructed in 1917 by private interests pursuant to authorization by Congress in 1915. This Congressional authorization specifically provided that the new bridge was subject to the Bridge Act of 1906, 33 U.S. C. § 491 et seq., which, among other things, simply provided that tolls were to be "reasonable and just" and that the Secretary of the Army¹ may from time to time prescribe reasonable rates. 33 U.S.C. § 494.

The Administrator determined that the words "reasonable and just" used in this section of the statute should be construed in keeping with the

"concept embodied in toll bridge legislation over the past forty years—that the rates of toll should be limited to an amount necessary to provide a fund sufficient to pay for the reasonable cost of maintaining, repairing, and operating the bridge and its approaches under economical management, and to provide a sinking fund for amortization of the bridge indebtedness."

This determination by the Administrator, thus limiting the amount which could be charged as tolls, was fully examined and refuted by the trial court.

Subsequent to the filing of the opinion of the trial court, Congress passed the International Bridge Act of 1972. 86 Stat. 731; 1972 U.S.Code Cong. & Ad. News 3883. Therein, Congress specifically limited its consent for construction, maintenance and operation of any international bridge to the provisions of the 1906 Act. The Act further provided, in § 6(1), that in the case of private bridges

"tolls may be collected from the date of completion of the bridge for a period determined by the Secretary of Transportation to be a reasonable period for amortization of the cost of construction or acquisition of the bridge, including interest and financing costs, and a reasonable return on invested capital."

At the end of this period, a privately owned bridge must be transferred to a public agency.

The Secretary of Transportation requested that a provision be inserted to provide that, as to bridges constructed or acquired by a governmental subdivision, tolls could not be charged for the purpose of operating at a profit. Such a provision was made a part of the original draft, H.R. 6274, 92d Cong., 1st Sess. (1972), but was deleted prior to passage. In this regard, the House Committee on Foreign Affairs reported:

"Section 6 is not intended to limit or affect in any way toll charges for an international bridge constructed or acquired under authority of this measure or any prior Act by any state or local

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