DC Federation of Civic Associations, Inc. v. Airis, No. 21416.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PER CURIAM
• Citation: 391 F.2d 478
• Docket Number: No. 21416.
• Decision Date: 15 February 1968
• Parties: D. C. FEDERATION OF CIVIC ASSOCIATIONS, INC., et al., Appellants, v. Thomas F. AIRIS, as Director of the District of Columbia Department of Highways and Traffic, et al., Appellees.

391 F.2d 478 (1968)

D. C. FEDERATION OF CIVIC ASSOCIATIONS, INC., et al., Appellants,
v.
Thomas F. AIRIS, as Director of the District of Columbia Department of Highways and Traffic, et al., Appellees.

No. 21416.

United States Court of Appeals District of Columbia Circuit.

Argued January 25, 1968.

Decided February 15, 1968.

Messrs. Roberts B. Owen and Gerald P. Norton, Washington, D. C., for appellants.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair.

391 F.2d 479

Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee Airis

Mr. Edmund B. Clark, Attorney, Department of Justice, with whom Messrs. S. Billingsley Hill and Thomas L. McKevitt, Attorneys, Department of Justice, were on the brief, for appellee National Capital Planning Commission, et al. Acting Asst. Atty. Gen. J. Edward Williams and Mr. Roger P. Marquis, Attorney, Department of Justice, also entered appearances for appellee National Capital Planning Commission, et al.

Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.

PER CURIAM:

The primary question presented on appeal in this declaratory judgment and injunction action is whether the District of Columbia officials responsible for the planning and construction of highway projects in the District have been authorized by Congress to disregard the requirements of Title 7 of the D.C.Code, particularly §§ 7-108 to 7-115, in the planning and construction of four links of the proposed District of Columbia freeway system. We find that they have not and reverse the District Court judgment denying injunctive relief. In view of this disposition it is unnecessary to reach other issues raised on this appeal.

The appellants¹ have sued the Director of the Department of Highways and Traffic of the District of Columbia, the District of Columbia, the Commissioners of the District of Columbia, the members of the National Capital Planning Commission, the Federal Highway Administrator, and various other District and federal officials and agencies to enjoin the planning and construction of four highway projects known as the North Central Freeway,² the East Leg,³ the Three Sisters Bridge,⁴ and the Missouri Avenue Expressway.⁵ Although it is not clear to what extent actual construction has begun on any of these projects, planning has gone on for some time, and land is being acquired for the North Central Freeway.

The plans for these freeway projects were initially developed by the District of Columbia Department of Highways and Traffic. The plans were then submitted to the National Capital Planning Commission, which eventually approved each of the challenged projects.⁶ Shortly after being approved by the NCPC, each of the projects was approved by the Commissioners for the District of Columbia.⁷

391 F.2d 480

Some public hearings were held while the plans were being developed.⁸

I.

Title 7 of the District of Columbia Code is entitled "Highways, Streets, Bridges" and the relevant portions of it provide as follows: Section 7-201 authorizes the Commissioners of the District of Columbia "to open, extend, or widen any street, avenue, road, or highway to conform with the plan of the permanent system of highways * * * adopted under sections 7-108 to 7-115."⁹ Section 7-108 directs the Commissioners to prepare "a plan for the extension of a permanent system of highways,"¹⁰ and section 7-122 empowers the Commissioners to change this plan "whenever in their judgment the public interests requires it."¹¹ The basic procedure for adopting the initial plan and for adopting changes in the plan is set out in section 7-109.¹² The District Commissioners are directed to prepare a map which shows the boundaries, dimensions, and square-footage of all planned streets and highways; to hold a public hearing for the benefit of landowners within the rights of way of the planned highways after giving notice of the hearing for 14 consecutive days;¹³ to submit the plan to the National Capital Planning Commission, which is empowered to "make such alterations * * * as it shall deem advisable"; and to record the plan with the surveyor of the District of Columbia after the plan has received the written approval of the NCPC.¹⁴

The basic planning procedure highlighted above was enacted as part of the Act of March 2, 1893,¹⁵ which was intended "to provide a permanent system of highways in that part of the District of Columbia lying outside the boundaries of the former cities of Georgetown and Washington."¹⁶ By way of a rider to the 1913 District Appropriations Act, this planning procedure was adopted as the procedure for changing the street and highway plans for "any portion of

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the District of Columbia."¹⁷ Another rider to the same Appropriations Act gave the Commissioners power to open and widen new streets and highways which conform to the plans so developed.¹⁸ Thus, following the 1913 Appropriations Act, the District Commissioners were empowered to plan and open highways throughout the District, provided the plans were developed in accordance with the procedure now laid out in Title 7 and the highways built in accordance with the plans. This wide power to plan and build highways is the only general authorization the District Government has to build highways

II.

The District appellees concede that they have not complied with the procedural requirements of Title 7 but contend that these requirements are not applicable to the challenged freeway projects. To support this contention the appellees rely principally on the argument that Congress has authorized the construction of these freeway projects in disregard of the provisions of Title 7 by regularly appropriating funds to the District for highway construction with full realization that some of these funds would be used for the development of freeways. This argument is without merit.

None of the recent appropriation acts have mentioned by name the challenged projects nor have they contained any provisions relating generally to the District Commissioners' power to plan and build highways.¹⁹ Thus, the lump-sum appropriations for street and highway construction did not expressly authorize the construction of these freeway projects. And as the appropriation of money to the District Commissioners for highway construction is entirely consistent with the provisions of Title 7, the appropriation acts cannot be seen to repeal implicitly Title 7 limitations. See Maiatico v. United States, 112 U.S.App.D.C. 295, 300-301, 302 F.2d 880, 885-886 (1962). Cf. United States v. Borden, 308 U.S. 188, 198-199, 60 S.Ct. 182, 84 L.Ed. 181 (1937); Ritholz v. March, 70 App.D.C. 283, 284-285, 105 F.2d 937, 938-939 (1939).

Furthermore, it cannot be said that the appropriation acts ratified the administrative action contrary to Title 7. Obviously, Congress cannot intend to ratify illegal action of which it is unaware. Therefore, where the ratification by appropriation argument has been accepted, courts have been careful to demonstrate factors attesting to Congress' specific knowledge of the disputed administrative action. See Brooks v. Dewar, 313 U.S. 354, 360-361, 61 S.Ct. 979, 85 L.Ed. 1399 (1941); Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 147-148, 57 S.Ct. 407, 81 L.Ed. 562 (1937); Atchison, Topeka & Santa Fe Ry. Co. v. Summerfield, 97 U.S.App. D.C. 203, 208, 229 F.2d 777, 782 (1956).²⁰

In this case there is no evidence to suggest that the appropriations committee or Congress as a whole were aware of the intention of District officials to plan and construct the freeway projects in disregard of basic Title 7 procedures.²¹

391 F.2d 482

General knowledge that the freeway projects were being planned or that there was a general intention to advance the freeway system as a whole is insufficient to support the ratification by appropriation argument. See Greene v. McElroy, 360 U.S. 474, 504-505, 79 S. Ct. 1400, 3 L.Ed.2d 1377 (1959); Ex parte Endo, 323 U.S. 283, 303 n. 24, 65 S.Ct. 208, 89 L.Ed. 243 (1944); Maun v. United States, 347 F.2d 970, 978 (9th Cir. 1965). In Ex parte Endo the Supreme Court, after recognizing the possibility of ratification by appropriation, commented

But the appropriation must plainly show a purpose to bestow the precise authority which is claimed. We can hardly deduce such a purpose here where a lump appropriation was made for the overall program of the Authority and no sums were earmarked for the single phase of the total program which is here involved. Congress may support the effort to take care of these evacuees without ratifying every phase of the program. 323 U.S. at 303 n. 24, 65 S.Ct. at 219.

Similarly, Congress may support a District of Columbia freeway program without intending to ratify actions in violation of parts of Title 7 of the District of Columbia Code. Obviously Congress, in appropriating funds, has a right to assume they will be expended according to law.

We also note that because appropriation acts generally apply to a limited period of time courts have been reluctant to hold that appropriation acts affect any substantive legislation whatsoever. See United States v. Vulte, 233 U.S. 509, 514-515, 34 S.Ct. 664, 58 L.Ed. 1071 (1914); Cella v. United States, 208 F.2d 783, 790 (7th Cir. 1953); NLRB v. Thompson Products, 141 F.2d 794, 798-799 (9th Cir. 1944). This is especially true when the language of the appropriation act is general and contrary to specific statutes dealing with the precise area in dispute. See Maiatico v. United States, 112 U.S. App.D.C. 295, 300-301, 302 F.2d 880, 885-886 (1962). In sum, ratification by appropriation is not favored and will not be accepted where prior knowledge of the specific disputed action cannot be demonstrated clearly.

III.

The District appellees also contend that the Federal-Aid Highway acts provided authority for proceeding...