H I G H W A Y R E S E A R C H B O A R D

Bulletin 278

Highway Laws I960

RESEAR&il

National Academy of Sciences—

National Research Council publication 818

HIGHWAY RESEARCH BOARD Officers and Members of the Executive Committee

1 9 6 0

OFFICERS

P Y K E JOHNSON, Chairman W . A . BUGGE, First Vice Chairman R . R . B A R T E L S M E Y E R , Second Vice Chairman

F R E D BURGGRAF, Director E L M E R M . WARD, Assistant Director

Executive Committee

B E R T R A M D . T A L L A M Y , Federal Highway Administrator, Bureau of Public Roads (ex officio)

A . E . J O H N S O N , Executive Secretary, American Association of State Highway Officials (ex officio)

L O U I S JORDAN, Executive Secretary, Division of Engineering and Industrial Research, National Research Council (ex officio)

C . H . S C H O L E R , Applied Mechanics Department, Kansas State College (ex officio, Past Chairman 1958)

H A R M E R E . DAVIS , Director, Institute of Transportation and Traffic Engineering, Uni­versity of California (ex officio. Past Chairman 1959)

R . R . B A R T E L S M E Y E R , Chief Highway Engineer, Illinois Division of Highways 3. E . B U C H A N A N , President, The Asphalt Institute W . A . B U G G E , Director of Highways, Washington State Highway Commission MASON A . B U T C H E R , County Manager, Montgomery County, Md. A . B . C O R N T H W A I T E , Testing Engineer, Virginia Department of Highivays C . D . CURTiss, Special Assistant to the Executive Vice President, American Road

Builders' Association D U K E W . DUNBAR, Attorney General of Colorado H . S . F A I R B A N K , Consultant, Baltimore, Md. P Y K E J O H N S O N , Consultant, Automotive Safety Foundation G . DONALD K E N N E D Y , President, Portland Cement Association B U R T O N W . M A R S H , Director, Traffic Engineering and Safety Department, American

Automobile Association G L E N N C . R I C H A R D S , Commissioner, Detroit Department of Public Works W I L B U R S. S M I T H , Wilbur Smith and Associates, New Haven, Conn. R E X M . W H I T T O N , Chief Engineer, Missouri State Highway Department K . B . WOODS, Head, School of Civil Engineering, and Director, Joint Highway Research

Project, Purdue University

F R E D BURGGRAF

Edi to r ia l Staff

E L M E R M . WARD

2101 Const i tut ion Avenue H E R B E R T P . ORLAND

Washington 25, D . C.

The opinions and conclusions expressed in this publication are those of the authors and not necessarily those of the Highway Research Board.

H I G H W A Y R E S E A R C H B O A R D

Bulletin 278

Highway Laws I960

Presented at the

39th ANNUAL MEETING

January 11-15, 1960

Washington, D . C . 1961

Department of Economics, Finance and Administration Guilford P. St. Clair , Chairman

Director, Highway Cost Allocation Study Bureau of Public Roads

DIVISION OF ADMINISTRATIVE, MANAGEMENT AND LEGAL STUDIES

W. L . Haas, Chairman Highway Management Associates

Madison, Wisconsin

David R, Levin, Vice Chairman Chief, Highway and Land Administration Division

Bureau of Public Roads

COMMITTEE ON HIGHWAY LAWS

Louis R. Morony, Chairman Director , Laws Division, Automotive Safety Foundation

Washington, D .C .

David R. Levin, Secretary Chief, Highway and Land Administration Division

Bureau of Public Roads

J . H . Beuscher, School of Law, University of Wisconsin, Madison Sherwood K. Booth, Deputy General Counsel, Bureau of Public Roads, Washington, W. A. Bugge, Director of Highways, Washington Department of Highways, Olympia Saul C. Corwin, Department Counsel, New York Department of Public Works, Alhanj C.W. Enfield, General Counsel, Bureau of Public Roads, Washington, D . C . Joseph E. Havenner, Director, Engineering and Technical Services, Automobile Clul

of Southern California, Los Angeles Patrick Healy, J r . , Executive Director, American Municipal Association, Washingto

D .C . Robert L . Hyder, Chief Counsel, Missouri State Highway Department, Jefferson City Roy E. Jorgensen, Engineeri i^ Counsel, National Highway Users Conference, Washii

ton, D .C . Leonard I . Lindas, Chief Counsel, Oregon State Highway Commission, Salem Mason J . Mahin, Assistant Director, Laws Division, Automotive Safety Foundation,

Washington, D .C . Jack M . Merelman, Assistant Director f o r Legislative Af fa i r s , National Association

of County Off ic ia ls , Washington, D .C . LeRoy A. Powers, Stagner, Alpern, Powers and Tapp, Oklahoma City, Oklahoma Robert E . Reed, Chief, Division of Contracts and Rights-of-Way, Department of Pub)

Works, Sacramento, California John R. RezzoUa, Chief Highway Counsel, Pennsylvania Department of Highways,

Harrisburg John F. Ryan, API Committee on Public Af fa i r s , New York, N . Y . Kermi t B . Rykken, Director, Highway and Legislative Department, American Automi

bile Association, Washington, D .C . John A. Shaneman, Engineer of Planning and Programming, I l l inois Division of High­

ways, Springfield Archie Smith, Assistant Attorney General, Providence, Rhode Island Joseph A. Sullivan, Detroit, Michigan W. F . Tempest, Portland Cement Association, Chicago, I l l inois Roland A. Walters, J r . , Chief Counsel, Oklahoma Department of Highways, Oklahom|

City

Contents REPORT OF COMMITTEE ON HIGHWAY LAWS

Louis R. Morony and David R. Levin 1

LEGAL PROBLEMS RELATED TO TRANSPORTATION IN THE METROPOLITAN NEW YORK AREA

Sidney Goldstein 11

THE FUTURE OF HIGHWAY LEGAL RESEARCH David R. Levin 17

Discussion: J . E . Havenner and J . W. McDonald 24 Closure: David R. Levin 24

THE LAW OF HIGHWAY CONTRACTS Mary O. Eastwood, Edward J . Reilly, Helen J . Schwartz, Alfred

J . Tighe, J r . , and Edward J . Zekas 25

leport of Committee on Highway Laws OUIS R. MORONY, Chairman, Director, Laws Division, Automotive Safety Founda-3n; and DAVID R. LEVIN, Secretary, Chief, Division of Highway and Land Admin-tration, Bureau of Public Roads

DURING the period covered by this report (February 1959 through May 1960) the jmmittee on Highway Laws of the Highway Research Board was mainly concerned ith its pr imary function of studying a l l the various branches of highway law.

Study procedure consists of defining a l imi ted area of law, such as condemnation land or control of roadside billboards, and then making a thorough examination of

jrtinent constitutional provisions, statutes, and cases in a l l the States. The mater i -is carefully analyzed to identify the important elements and principles in the part ic-

ar area. In the published reports, these elements are grouped together, using ta-es where appropriate, to facil i tate comparison of the law in different jurisdict ions. \ie narrative sections of the reports fur ther point out s imilar i t ies and differences be-reen State laws and identify significant trends.

From 1955 unti l 1960, the committee has maintained a staff of attorneys to carry 1 this research. As the end of f i sca l 1960 approached, however, most of the com-ittee's original research objectives (HRB Bulletin 88) were wel l on their way of hav-g been accomplished, and, therefore, the staff of attorneys was disbanded. The )mmittee is arranging fo r the few remaining projects to be undertaken by individual ^searchers, on a contract basis.

During its f ive-year existence, the staff contributed a great deal to the understand-g of highway law throughout the United States. Its many reports, constituting excel-;nt and exhaustive analyses of the law, have been well received by highway off ic ia ls iroughout the nation.

MEETINGS

A business meeting of the Committee on Highway Laws was held in Boston on Octo-er 11, 1959, during the AASHO Annual Meeting. Committee activity was reported nd discussed. A resolution was approved to the effect that the member States had )und the work of the committee most helpful and that this work should be continued.

An open meeting was held during the HRB Annual Meeting in January 1960.

PAPERS PRESENTED

The following are summaries of papers presented at the 1960 Annual Meeting:

"Legal Problems Related to Transportation in the Metropolitan New York Areas ," y Sidney Goldstein, General Counsel of The Port of New York Authority, reviewed le organization and purpose of the Port Authority and explained the governmental •amework within which i ts bridges, tunnels and highways are planned, constructed i d operated. As examples of legal problems with which the Port Authority is faced,

described the controversies involving the home rule provisions of the New York jonstitution, and taxation and zoning restrictions in New Jersey.

The Future of Highway Legal Research," by David R. Levin, Chief, Highway and ^nd Administration Division, Bureau of Public Roads, summarized the accomplish-ents of the Highway Laws Project since i ts inception in 1952 and pointed out some

tisible new directions f o r future highway legal research. The proposed future pro-ts include the coordination of the various individual reports already published by Committee on Highway Laws; reporting new developments to keep the basic Laws

|:oject 's works up-to-date; draft ing model highway legislation; investigating the use electronic computers i n legal research; and research into special current prob-

1

lems, such as control of land use at Interchanges and the legal aspects of city and higl way planning.

After this talk, J .W. McDonald, Manager, Engineering Department, Automobile Club of Southern California, presented a statement by J . E . Havenner, Director, En­gineering and Technical Services, and himself in which they stressed the need f o r re­search leading to better laws assigning transportation planning and operating authoritj^ to state, county and local governments.

"Application of Laws Project Research," by Duke W. Dunbar, Attorney General of Colorado, and member of the Highway Research Board Executive Committee, was pre sented on short notice when M r s . Anne X . Alpern, Attorney General of Pennsylvania, was unable to appear on the program. The author commented on the research being done by the HRB Laws Committee and what i t meant to a State Attorney General. He demonstrated the importance of this type of research by citing several specific i n ­stances in which the work of the Laws Project had helped Colorado highway attorneys in the performance of their functions, and concluded that such research was necessarj] to our greatly expanded modern highway program.

"The Law of Highway Contracts," by Mai7 O. Eastwood, Edward J . Reilly, Helen J . Schwartz, A l f r ed J . Tighe, J r . , and Edward J . Zekas, staff members, Committeej on Highway Laws, Highway Research Board. These attorneys recently completed a comprehensive study of the law pertaining to highway contracts throughout the United States. In this talk, they summarized the findings of their research effor t , which w i l l soon be published (HRB Special Report 57).

The texts of Goldstein's and Levin's talks, and an outline of the talk on contracts are included elsewhere in this bulletin.

REPORTS PUBLISHED PRIOR TO 1959

Special Report

21 Relocation of Public Uti l i t ies Due to Highway Improvement: An Analysis of Legal Aspects

26 Expressway Law: An Analysis 27 Acquisition of Land f o r Future Use: A Legal Analysis 32 Condemnation of Property f o r Highway Purposes: A Legal Analysis,

Part I 33 Condemnation of Property f o r Highway Purposes: A Legal Analysis,

Part n 39 Legislative Purpose in Highway Law: An Analysis 41 Outdoor Advertising Along Highways: A Legal Analysis 42 Highway System Classification: A Legal Analysis—Part I 48 Federal-Aid Provisions in State Highway Laws: An Analysis 49 Intergovernmental Relations in State Highway Legislation: An Analys 50 State Constitutional Provisions Concerning Highways: A Legal Anal­

ysis

Bulletin

88 Better Laws f o r Better Highways 145 Highway Laws-1956 205 Highway Laws-1958

REPORTS PUBLISHED DURING PERIOD COVERED BY THIS REPORT

Highway System Classification: A Legal Analysis—Part I (Special Report 42)

This report concerns the pr imary highway systems of the 50 States and Puerto Ricd It is the f i r s t of a series of studies on the subject of highway classification, and w i l l b | followed by reports cove r i i ^ other State and local highway systems.

There is a vast body of law on this subject which, f o r purposes of analysis, has be\ broken down into six categories, as follows:

1. Objectives of the Pr imary System.—Criteria to be used in designating the p r i -

,ry highway system; that is , the standards or guides established by the legislature guide the administrative agency charged with the responsibility of designating the stem. 2. Designating the Pr imary Highway System.—The authority or agency responsible • such designation, whether i t be the legislature i tself , an administrative body, or ! State constitution. 3. Expandir^ the System.—Designation of any new faci l i t ies which may be added to I system, including highways constructed over new rights-of-way as wel l as the ab-rption of existing roads f r o m local jurisdictions and the taking over of t o l l roads. 4. Alteration or Change in the Physical Location of Existing State Highways.—The l i t s of State highway authority in this respect i s an important factor i n this area. 5. Contracting the System. —The removal or detachment of a highway f r o m the sys-n, as well as the disposition of the deleted highway. 6. Municipal Connecting Links.—Urban extensions, as wel l as alternate routes and passes, and the authority pertaining to the designation, alteration, and deletion of !se faci l i t ies with respect to the system.

The report also suggests elements f o r consideration by States which undertake to irise their highway classification law.

deral-Ald Provisions in State Highway Laws: An Analysis (Special Report 48)

This report is concerned with those provisions of State law specifically re fe r r ing Federal-aid highways and highlights those areas of law in which the States have en-ted legislation to facil i tate participation in the Federal-aid highway program. The statutes are compiled and categorized with reference to the assent of the State fislature to the Federal statutes, the State's pledge to provide matching funds and to Lintain Federal-aid roads, and the general authority delegated to the State highway partment to cooperate with the Federal government in the construction of such roads, e remainder of this report is concerned with State statutes which pertain to State-deral cooperation in connection with the Interstate System, Federal-aid secondary ads, railway-highway crossings, public ut i l i ty relocation, and other aspects of Fed-al highway aid.

ergovernmental Relations In State Highway Legislation: Analysis (Special Report 45)

Almost every s t r ip of State highway is of actual or potential concern to more than e unit of government. This study is an analysis of statutory law to ascertain how ; several States have divided the authority and responsibility f o r roads in the various fhway systems among the State and local governments, and the extent of cooperating thority granted to the various governmental units. Some of the statutes pertaining to interaction between governments give off ic ia ls aad general powers to cooperate in highway matters while other such statutes apply ly to a certain highway function or to roads of a particular classification. This re-r t covers both the general authorizations and the statutes of more l imi ted applica-in. It is recognized that a study of administrative practices, as well as the law, luld be necessary to get a complete picture of intergovernmental relations, but the itutes constitute the basic framework f r o m which the highway administrators must r k and, therefore, this study of the law, in addition to being valuable in i tself , is lecessary f i r s t step of a comprehensive treatment.

ite Constitutional Provisions Concerning Highways: Legal Analysis (Special Report 50)

This report reviews constitutional provisions which are directly or indirectly re-;ed to highway operations. Constitutions provide the broad principles with which a l l jhway legislation and operation must conform and this report, therefore, is con-rned with a l l phases of highway law. This is somewhat different f r o m most of the ler reports of the Committee on Highway Laws in that they are concerned with Leg-

islation and case law pertaining to l imited areas of highway activity. For presentation purposes the pertinent provisions have been grouped into the fol­

lowing categories: highway administration; acquisition of property; finance; inter­governmental relations; internal improvements; local, special or private laws; su against the State; and miscellaneous provisions. Further breakdowns under each of these headings provide concise compilations of a l l the constitutional provisions perta ing to each of the functional areas of highway law.

This document provides a ready source of information on the current and compar; tive status of a l l State constitutions which affect both existing statutes and future legi lation bearing on highway matters.

REPORTS IN PROGRESS

Condemnation of Property f o r Highway Purposes: A Legal Analysis: Part n i

This report, which covers the law pertaining to determination of the amount of co pensation in condemnation cases, has been writ ten and reviewed, and is now being pj pared f o r print ing.

Highway Contracts: A Legal Analysis

This is an analysis of general contract principles and statutes applicable only to p lie contracts, as they affect highway contracts. This report is also complete except f o r the printing process.

Highway System Classification; A Legal Analysis—Part 11

State secondary, county, township, municipal, and other local road systems are the subject of this report. Considerable work has been done on this study, but i t is not yet complete.

Highway Finance

A legal analysis of this subject is nearly finished.

Highway Administration

An analysis of the law on this subject has been undertaken and w i l l be finished witl a few months.

Maintenance and Drainage Law

Arrangements f o r this study have just been made and i t w i l l start immediately.

FUTURE REPORTS

The committee contemplates future analyses of the law pertaining to highway plan­ning, location and design; programming, budgeting and accounting; t r a f f i c engineeri to l l fac i l i t ies ; bridges; public relations; landscaping; elimination of grade crossin( regulatory provisions and special legislation.

ASSISTANCE TO STATES

The Highway Laws Project receives many requests f o r information during the cou of a year. State highway departments and other governmental agencies often ask f o r comment on proposed statutory provisions or on some new specific legal problem. 1 committee staff, drawing on its studies of law in a l l the States, is often of consideral help on questions arising in a particular State. During the period covered by this re­port, the committee assisted States in problems relating to construction contracts, c t r o l of access, condemnation of property, and outdoor advertising.

A committee of the Oklahoma Legislature is presently working on a revision and c if icat ion of that State's highway laws.

Members of the Highway Laws Committee consulted with the Oklahoma committee concerning some of the problems involved in this project. The Highway Research Board legal studies proved to be of considerable use in these discussions.

REPORT TO SPECIAL SUBCOMMITTEE

A special Subcommittee of the Executive Committee of the Highway Research Board, lointed by Chairman Pyke Johnson and headed by Colorado Attorney General Duke ibar, commissioned a special task force on A p r i l 26, 1960, to investigate several tters related to the Highway Laws Project of the Board. Members of this task force re David R. Levin, Chairman; Louis R. Morony, and Robert L . Reed. This group found that the Highway Laws Project so f a r has been highly successful in •plying operating highway off ic ia ls with scientifically-derived legal factual materials, I proposed that legal research be made a permanent part of the program of the High-f Research Board. It was suggested that future legal research should include the Lowing components:

jrdination of Segments of Laws Research

By the end of 1960, there w i l l have been published about 25 individual reports on 'erent areas of highway law. Several subjects which were studied separately, in ler to divide the work up into manageable portions, are actually closely interrelated I should be considered together to achieve a fu l ly descriptive report. For example, hway system classification involves intergovernmental relations and legislative dec-ations of purpose, yet these three subjects are in different reports. A project luld be undertaken to coordinate such related subjects and to examine the relation-p between them, much of the significance of which was necessarily not developed ;he original studies. Also the statutory or legal definitions of pertinent terms and concepts should be hered in one place. This would lead to more precise and consistent use of terms lighway law.

;ping Abreast of Legal Developments

It was noted that two years ago the American Association of State Highway Officials ;gested that after the basic work of the Laws Project is complete the materials de-•ped should be continuously kept up-to-date. The task force feels that such sur-Llance of the highway legal f i e l d is essential if the public interest in the highway tters is to be properly served. The task force is presently looking into the possibility of having an independent pub-ler consolidate the individual monographs of the Highway Laws Project. The re -ting documents could probably be published in looseleaf f o r m so they could be easily t up-to-date.

p i Research on Special Current Problems

There are many current problems in the highway f i e ld which require legal study. ! is the problem of intensive land use development around interchanges which re -es their capacity. There are many legal tools, such as the police power and emi-t domain, which should be explored to determine how ttiey could be applied to this blem. A study of the legal aspects of the relationship between city planning and highway ining could lead to more effective coordination of these two functions. An evaluation of present legal tools f o r transportation improvement, especially in an areas, and development of improved tools would be worthwhile. rhere is a need to coordinate highway and parking faci l i t ies in urban areas. The i l authorization f o r integrated treatment of t ra f f ic and parking problems should be i ied so more effective methods can be developed.

LITIGATION

The Highway Laws Committee reviews current court decisions as they are reported selects those which are of interest to highway off ic ia ls . During the period covered

this report summaries of these cases were published in f ive Committee on Highway vs Correlation Service Memoranda. Brief abstracts of the principles of the more mrtant cases are as follows:

Public Utmties

When a State pays f o r the cost of relocation of ut i l i ty faci l i t ies necessitated by the construction of a Federal-aid highway project, i t may be reimbursed with Federal funds i f such payment by the State does not violate State law (23 U.S.C. A. 123). In order to take advantage of this Federal aid, many State legislatures have adopted statutes authorizing the payment of such costs by the State.

Although these statutes are quite s imi la r in nature, courts of different States havi reached different conclusions as to whether or not they are constitutional. The fo l io ing four cases involved court tests of these ut i l i ty relocation cost reimbursement sta utes. (See previous Highway Laws bulletins f o r earl ier cases.)

Minnesota; Reimbursement Statute Constitutional.—The statute in question autho: ized reimbursement of ut i l i ty companies f r o m highway funds f o r relocation of u t i l i t i t made necessary by the construction of Interstate highways. The court decided the following points in i ts opinion: (1) such reimbursement is not a diversion of highway funds f o r non-highway purposes, because the use of rights-of-way f o r ut i l i ty locatior is a proper and pr imary highway purpose. (2) Relocation costs are valid expendituri f o r a public purpose because the relocation was made necessary in order to expedite public t ravel and also because the public would suffer economically i f the State failed to take advantage of this Federal aid. (3) The act was not a local or special law be­cause i t applied only to Interstate highways rather than to a l l Federal-aid highways. The classification was germane to the purpose of the law and was based on substanti: distinction.between Interstate highways and other highways. (4) The act was not an v constitutional impairment of the pre-existing contract between the ut i l i ty company ar the State. They were the only two parties to the contract and mutually agreed to am( rescind or abrogate the contract in whole or in part . Furthermore, such a change i i a contract with the State is jus t i f ied under the police power. Minneapolis Gas Co. v Zimmerman, 253 Minn. 164; 91 N .W. 2d 642 (1958).

Tennessee: Reimbursement Statute Unconstitutional.—The Tennessee statute pro vided f o r State reimbursement of ut i l i ty relocation costs when the relocation was re­quired by the construction of any highway project built with Federal-aid funds, and when the Commissioner determined that such costs would result i n undue hardship u] the u t i l i t y . The statute was held to be in violation of Ar t ic le n of the Tennessee con­stitution which forbids the State's giving or lending credit " . . . to or in aid of any pe: son, association, company, corporation or municipali ty." The court said the basic test of Ar t ic le n was whether the expenditure was f o r a State purpose. The court then ruled that the reimbursement of ut i l i t ies in such a manner was p r imar i ly f o r th( benefit of subscribers of ut i l i t ies or their stockholders. Thus i t fa i l s to serve a Stat purpose and is not a public purpose. A dissenting justice stated that the existence oi such faci l i t ies benefited the public welfare and that the Legislature was therefore jus t i f i ed in enacting such a statute. State of Tennessee v . Southern Bel l Te l . and Te l . Co. , 319 S.W. 2d'90 (Tenn. 1958).

New Mexico; Reimbursement Statute Unconstitutional.—The Highway Commissioi was upheld in i ts refusal to comply with a New Mexico statute providing f o r the r e im bursement of a gas company f o r the cost of relocating i ts lines as required by the w i ening and improvement of a State highway. The court stated that the gas line was solely f o r the benefit of the u t i l i ty ; that neither the State nor the public had any righl to use the l ine, and that the gas company was not a subordinate governmental agency nor was i t f u l f i l l i n g a governmental function even though i t was serving a highly usefi purpose. Therefore, the reimbursement would violate the constitutional prohibition s^ainst the donation of State funds in aid of private corporations. The court also sal that there was no damage f o r taking of property which required payment of just com­pensation. State Highway Commission v . Southern Union Gas Co. , 65 N . M . 84; 332 P. 2d 1007 (1958).

Idaho; Reimbursement Statute Unconstitutional.—The defendant ut i l i ty company, ordered to remove its faci l i t ies f r o m highway right-of-way so as not to interfere wit planned reconstruction, demanded compensation under a State statute providing f o r reimbursement out of State highway funds in such situations. The Idaho Supreme

art held that the statute was unconstitutional f o r the following reasons: The ut i l i t ies jd f o r public right-of-way was a permissive use only and not a permanent property ;ht. This permissive use was f o r the benefit of the uti l i t ies and subscribers and )uld not be paid f o r by the highway users who received no benefit. The court stated t giving the uti l i t ies the vested right to reimbursement would constitute an uncon-tutional g i f t of the credit of the State to a corporation. The ut i l i t ies are prof i t mak-; corporations and the fact that their activities furnish services to the public is not f ic ient to remove payment of the relocation cost f r o m the constitutional prohibitions, e order to remove the faci l i t ies was a proper exercise of the police power and was ; a taking of private property without compensation. State v . Idaho Power Co. , 346 2d 596 (Idaho, 1959).

The following cases involved other public ut i l i ty relocation problems:

Washington: Ut i l i ty Must Bear Cost of Facili ty Relocation. —(No statute) The loca-n of a new limited-access freeway cut across many existing streets in the City of ncouver. This case was to determine whether the State or the public ut i l i ty d is t r ic t , aunicipal corporation, should pay the cost of relocation of ut i l i ty faci l i t ies required the new construction. The ut i l i ty contended that its franchise right to occupy the )lic streets amounted to private property which could not be taken without compen-ion. The State asserted that a franchise f r o m the city did not create vested rights the ut i l i ty and that franchise rights are qualified by the police power of the State, e court said that whatever t e rm was used to describe the u t i l i ty ' s right to use the eets of Vancouver, i t was s t i l l subject to the express provision requiring removal en necessary f o r the public convenience. The court said that the ut i l i ty could s t i l l }ply electricity to the whole ci ty, therefore the change was a relocation and as such ; compensable according to the general rule that ut i l i t ies operating under a franchise st bear the cost of relocation made necessary by highway improvements. The State Washington has a statute which provides f o r State reimbursement of ut i l i ty relocation !ts on the Interstate system, but i t only applies to contracts let after June 30, 1959, ich excludes this project. State v . Public Ut i l i ty Dis t r ic t , 349 P. 2d 426 (Wash. 1960). Louisiana: State Must Pay Relocation Costs f o r Ut i l i ty Which Has Easement. — In 1935 owner of a parcel of land granted to the gas company a servitude or easement across property fo r the construction of a pipeline. In 1954 the then owner of the same land

iveyed to the Louisiana Department of Highways a servitude f o r the construction and intenance of a highway. The Highway Department ordered the gas company to lower pipeline and the gas company claimed reimbursement f o r its cost on the basis that right-of-way or servitude constituted property which has been appropriated f o r a

)lic use. The court held that the Highway Department's interest in the land was sub-t to the gas company's pre-existing servitude, and this damage to the f ree use of servitude required compensation. Arkansas Louisiana Gas Co. v . Louisiana De-

•tment of Highways, 104 So. 2d 204 (La. 1958). Texas: Interference with Pipeline Easement Held Compensable.—In 1956 Texas se-•ed f r o m certain landowners highway right-of-way easements which crossed a 38-year-easement belonging to a pipeline company. The company made the required adjust-

nt in its line and demanded reimbursement f o r the cost. The State refused compen-lon on the ground that the State could require the adjustment under i ts police power hout making compensation. The court held that the private pipeline easement was )perty within the contemplation of the State and Federal constitutions and that the asion of this property right required payment of just compensation. Sinclair Pipe-s Co. V . State, 322 S.W. 2d 58 (Ct. Civ. App. Texas 1959), Pennsylvania: Reimbursement f o r Relocating Nontransportation Ut i l i ty Facili t ies t Authorized by Statute.—The case involves the allocation of costs f o r the relocation 3lectric company faci l i t ies required by highway construction in connection with the laware River Port Authority's Walt Whitman Bridge. The Public Uti l i t ies Commis-n required the electric company to relocate its faci l i t ies and placed the entire cost he relocation upon the Port Authority. The common law rule is that public ut i l i t ies 1 be required to relocate, at their own ejcpense, ut i l i t ies which occupy highway r ight-way. The court recognized that the Legislature had seen f i t to change this rule with

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respect to transportation public ut i l i t ies , such as railroads, under certain c i rcum­stances. However, the court found no clear expression of Legislative intent to ex­cept nontransportation public ut i l i t ies f r o m their common law burden of relocating their fac i l i t ies . The fac i l i ty here was a nontransportation public u t i l i ty . The Publi Ut i l i ty Commission's order allocating the f u l l cost of relocation to the Port Authori t was reversed. Delaware River Port Authority v . Pennsylvania Public Ut i l i ty Com­mission, 393 Pa. 639, 145 A. 2d 172 (1958).

Kentucky: State Liable to Contractor f o r Failure to Clear Construction Site of Ob stacles. —Because the right-of-way was not cleared of ut i l i ty lines, the plaintiff con­tractor was unable to begin performance of his contract on t ime. The delay was due to a controversy between the State and ut i l i ty companies over who should bear the cost of removing the lines. The court held that the State would be liable f o r damagei even in the absence of an express contractual obligation to remove the lines, becaus( in every highway contract there is an implied condition that a site w i l l be provided upon which the road can be bui l t . This implied condition was distinguished f r o m an implied contract, f o r the breach of which the State cannot be held liable in damages. Derby Road Bldg. Co. v . Commonwealth, 317 S.W. 2d 891 (Ky. 1958).

Authority

The next six cases dealt with the authority of highway agencies.

Ohio: Authority of Director of mghvra.ys Over Federal-Aid Routes in Cities.—A statute provided that the Director of Highways could proceed with relocation of Fedei al-aid routes within a ci ty , despite lack of consent by a ci ty, i f he made a declaratlo that the work was necessary. The city could appeal the Director 's decision to the courts.

In the f i r s t use of this statute the City of Lakewood refused consent to the Directo plan and offered alternate proposals f o r the relocation of a Federal-aid route within the c i ty . The court, in upholding both the statute and the Director 's action under i t , stated that the statutory procedure was constitutional even though i t did not provide the city with an opportunity f o r a hearing before the Director, and that, although thej was no Federal money involved in this particular project, i t was on part of the Fedei aid pr imary highway system and, therefore, the statute applied. The State loses no control or supervision over them. City of Lakewood v . Thormyer, 154 N . E . 2d 777 (Ohio, 1958).

Georgia: Highway Board Cannot Enact Traf f ic Rules Ifaving Authority of Law. —1 defendant was convicted of involuntary manslaughter resulting f r o m a coll ision when he crossed the unbroken yellow centerline of a two-lane highway. Nowhere in the la^ the court noted, was i t established what such a yellow line meant. The State Highwa Board had adopted a t ra f f ic control manual but the Board Is an administrative body a cannot enact laws involving a c r imina l penalty. In the absence of any properly place sign explaining the meaning of the yellow line, the crossing of the line by a motorist is not of itself a penal offense. The court added that as a matter of fact the public generally knows that a yellow line means a no passing zone, but this does not mean that i ts violation is a c r ime as a matter of law. Maxwell v . Slate, 97 Ga. App. 334; 103 S.E. 2d 162 (1958).

Florida: City Has Power to Regulate Driveway Openit^s.—Plaintiffs applied to ci f o r permission to open a parking lot with driveways on two streets. The City of Mia Commission granted the parking lot permit , but with access to only one street. Acc to the other street was denied because of t ra f f ic diff icult ies and proximity to a f i r e s t lon. The court held that while the city charter did not mention the regulation of d r r ways as such, the question of public safety was Involved and municipal corporations had implied powers to regulate driveways. The action of the city In denying the requ f o r the driveway would only be overruled i f i t were plain to the court that the restric tion bore no reasonable relation to the health, comfort , safety or general welfare. No such showii^ was made here. City of Miami v . Girtman, 104 S. 2d 62 (Florida, 1958).

Idaho: Highway Directors Have Power to Appoint Legal Counsel.—The Board of

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Highway Directors appointed the plaintiff as its attorney. The State auditor refused to pay the attorney's salary on the ground that only the Attorney General or his assistants could act as counsel f o r the Highway Directors. The court ruled that the constitution did not vest powers in the Attorney General which were not subject to legislative change, [t was fur ther held that the Legislature had imposed upon the Highway Board many du­ties which required legal advice and that the Legislature intended that the Board should have exclusive control over employing persons to f i l l i ts positions. Padgett v . Wil l iams, 348 P. 2d 944 (Idaho 1960).

Missouri : Court Cannot Enjoin Highway Construction Where Highway Commission Has Acted Within Its Authority. — A village sought to enjoin State construction on an Interstate route which would obstruct three of the f ive public streets connecting the north and south parts of town. The Highway Commission alleged that to provide grade separations f o r the remaining streets would cost in excess of $500,000 while saving only a few blocks of t ravel . The court painted out that there was no allegation of fact showing that the obstruction of access imposed unreasonable burdens on the t r a v e l i i ^ public or extreme impairment of f i r e prevention efficiency. The court said that con­stitutional and statutory powers to locate and design State highways are exclusively conferred upon the Commission and that this denies the court the right, absent an al le­gation of fact showing bad fa i th or manifest abuse of authority, to enjoin the Commis­sion in the construction of this highway. State v . El l io t t , 326 S. W. 2d 745 (Mo. 1959).

South Dakota: Highway Commission's Authority to Set Speed L i m i t s . —Under its authority to establish l imi ted speed zones, the Highway Commission established a 60 mph maximum on a l l State trunk highways. Defendant here was convicted of dr iving his automobile i n excess of this 60-mph l i m i t . The conviction was reversed on the grounds that the authority to establish l imi ted speed zones did not include the authority to establish a speed l i m i t f o r the whole State trunk system. State v . Devericks, 94 N . W. 2d 348 (S.D. 1959).

Ohio: Attorney's Fees Incurred in Successful Taxpayer's Action May Not Be Paid f r o m Highway Funds.—In a previous taxpayer's suit the plaintiff here had succeeded in preventing an expenditure of $64,500 by the Director of Highways. In this case the plaintiff is attempting to recover, f r o m the funds which he preserved, his attorney's fees in the previous suit. The court held that such funds could not be used to pay at­torney's fees because these expenses were not within the scope of the highway purposes fo r which the use of the funds was l imi ted by statute. Grandle v . Rhodes, 169 Ohio St. 77; 157 N . E . 2d 336 (1959).

Pennsylvania: Highway Closed f o r Construction but Open to Local Tra f f i c Does Not Cease to Be a "Highway."—The defendant was convicted of violating a statute which makes i t unlawful to "operate on any highway" with a load in excess of the prescribed weight l i m i t . The road was under detour by the Highway Department f o r construction jurposes. Barricades were erected with appropriate signs indicating that the road was :losed except f o r local t r a f f i c . The violation occurred within the barricades but on Jiat portion of the road which was not actually under construction. The defendant con-ended that since the road was not open to the public generally i t was not a "highway" md thus the weight l i m i t statute did not apply to i t . The court ruled that although trav-! l on a highway is prohibited to a l l but local t r a f f i c , the status of that portion of the lighway which is open to local t ra f f ic does not change f o r purposes of Vehicle Code irovisions pertaining to highways. Commonwealth v . Weik, 188 Pa. Super, 391; 147 L. 2d 164 (1958).

New York: Interpretation of the Term "Current Prices" in Highway Contract.—An ngineering f i r m sued the State of New York on a contract f o r engineering services, 'he part of the contract in dispute caUed f o r the preparation of project plans and i tem-sed cost estimates "computed at current prices as used by the Department of Public rorks." For this work the contractors were to be paid "three and one-half percent of le estimated construction cost at current prices, of the project as approved by the iperintendent." The contractor contended that he should be allowed to determine the rices used in preparation of the cost estimates (which would be the basis f o r comput-g his fees) on the basis of the "market" or "going" or, "real is t ic" prices. The court }ld that the prices which the contract re fer red to were those which the Department of

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Public Works compiled f r o m the bids of successful bidders f o r State construction con­tracts . Although the engineering contractor made the cost estimate in 1952, he was required to use 1951 prices which were the "current prices" available at that t ime. Edwards v . State, 14 Misc. 2d 748; 178 N . Y .S . 2d 287 (Ct. C I . 1958).

Massachusetts; Charge in Staking of Excavation Entitled Contractor to Additional Compensation f o r Extra Work.—The cross-section plan f o r one of the cloverleaf quad­rants on this highway contract called f o r the removal of a l l material therein. The en­gineers staked out the quadrants in such a way as to leave an island of rock between the access ramps. After excavation in accordance with the stakes, the engineer or­dered the island of rock removed. The court held that such staking of the area by the engineer was an act of "omission or commission" which entitled the plaintiff to addi­tional compensation under the contract. The court said that "the right in the engineer to alter the work does not mean that an interpretation binding on the contractor can be changed with impunity after the contractor has acted on the interpretation supplied." Campanella and Cardi Construction Co. v . Commonwealth, 158 N . E . 2d 304 (Mass. 1959).

Missouri ; Statewide Vehicle Weight Law Applies in Cities.—A Missouri statute i m -posed a gross weight l imitat ion upon vehicles operated on the highways of the State. A special statute imposed a l i m i t on the number of pounds per axle f o r vehicles operated in ci t ies. The defendant who operated vehicles exclusively within St. Louis was con­victed of violating the statewide gross vehicle weight l imita t ion. He appealed contend­ing that the special statute l imi t ing pounds per axle, which he did not violate, was the only weight l imitat ion which applied to h im. The court held that the special statute was not an exception to the general statute and that in cities both statutes applied. The con­viction was a f f i rmed . State v . Chadeayne, 313 S.W. 2d 757 (Mo. 1958).

Tennessee; Weight L i m i t Statute Which Exempts Common Carr iers Is Unconstitu­t ional . — A State statute authorized counties to prescribe maximum gross weights f o r vehicles using county roads. The statute exempted passenger buses and common car­r i e r s duly cer t i f ied by the Tennessee Public Service Commission, f o r the Interstate Commerce Commission. Defendant, a common car r ie r , was convicted of exceeding the county weight l i m i t which was much less than the gross weight l i m i t imposed under the general law of the State. The court pointed out that the purpose of the State statute was to protect the streets f r o m unnecessary in jury or damage and that since there was no difference in the amount of damage infl icted by common and private car r ie rs , there was no just if icat ion f o r the obvious discrimination between the two types of vehicles. The court, therefore, held that the statute violated the equal protection clauses of the United States and the Tennessee constitutions. Dilworth v . State of Tennessee, 322 S.W. 2d 219 (Tenn. 1959).

Legal Problems Related to Transportation In the Metropolitan New York Area SIDNEY GOLDSTEIN, General Counsel, The Port of New York Authority

• THE PAPER discusses certain aspects of governmental relations and their accom­panying legal problems which arise out of highway development in the metropolitan New York-New Jersey area with which the author has been concerned during the last several years as General Counsel of The Port of New York Authority.

The Port Authority is the "joint or common agency" of the States of New York and New Jersey, created by interstate compact in 1921 to coordinate and develop transpor­tation and terminal facilities within the Port of New York District. ^ The Port Author­ity consists of 12 non-salaried commissioners, 6 appointed by each Governor with Senatorial consent. At the present time it is operating 21 facilities representing a net capital investment of over $900,000,000. These include airports and marine and inland terminals, as well as four bridges and two tunnels between the States—the George Washington, Goethals and Bayonne Bridges, the Outerbridge Crossing and the Lincoln and Holland Tunnels.

The problems which form the subject of this paper grow out of the fact that Port Authority facilities are located in a densely populated metropolitan region of two States which boasts of nearly 13,000,000 people residing in more than 360 communities, em­bracing 219 municipalities and 17 counties. The relations between the bi-State Port Authority and the many units of local, state and Federal government which operate in this area present fascinating governmental and legal questions. This paper f i rs t re­views the governmental setting in which the Port Authority operates and then presents two specific legal problems which have arisen out of highway development.

THE GOVERNMENTAL FRAMEWORK IN WHICH PORT AUTHORITY VEHICULAR CROSSINGS ARE PLANNED, CONSTRUCTED AND OPERATED

On the State Level Legislative Authorization and Continuing Review.—The 1921 Compact looked forward

to continuing statutory authorization of Port Authority activities by not only providing for subsequent legislative adoption of a comprehensive plan for the development of the Port District, but by specifyii^ that:

The port authority s h a l l have such additional powers and duties as may hereafter be delegated to or Imposed upon I t from time to time by the action of the legis­lature of either state concurred in by the legislature of the other.2/

In point of fact, the Port Authority has procured specific authorizing legislation in ;onnection with each bridge and tunnel i t has constructed.' The frequent introduction,

L/Port Cdupact, Ch. l^k, Laws of N.Y., 1921 and Ch. I51 , Lavs of N.J., igei, consented ;o by Cong. I n Pub. Res. 17, 67 Cong. 1st Sess. (1921). l/Art. V I I , Port Contpact (Footnote 1, above). l/Outerbrldge Crossing, Ch. 125, I^wa of N.J., IS^k, as p a r t i a l l y repealed by Ch. 192, BMB of N.J., 1925J Ch. 230, IflWB of ff.Y., 19214-. Goethals Bridge, Ch. 1U9, Lavs of N.J., 92h, as pa r t i a l l y repealed by Ch. 19k, lavs of N.J., 1925; Ch. I86 , Lavs of N.Y., I92U. ayonne Bridge, Ch. 97, Lavs of N.J., 1925J Ch. 279, Lavs of N.Y., ige6. George Washlng-on Bridge, Ch. 1 1, lavs of N.J., I925; Ch. 211, lavs of N.Y., I925. Lincoln Tunnel, Ch.

lavs of N.J., 1931; Ch. J4-7, laws of N.Y., 1931- Lincoln Tunnel Third Tube, Ch. 11, iws of N.J., 19^h} Ch. 180, Laws of N.Y., 195^. George Washington Bridge Second. Deck, I. 156, Laws of N.J., 19$6; Ch. 807, Lavs of N.Y., I956.

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debate and passage of such authorizing legislation (as well as other bills relating to the Port Authority) have given both legislatures constant occasion to review Port Au­thority operations.

The Compact assured that this continuing legislative review would be exercised in­telligently by specifying that the Port Authority

s h a l l make an annual report to the legislatures of both states, setting forth In detail the operations and transactions conducted by i t * * * . ] ^ /

Moreover, the legislatures have described in great detail the disposition of all Port Authority revenues.'

Executive Review.—The most dramatic example of continuing review over Port Au-thority activities by the States is that represented by the gubernatorial veto power over the action of Port Authority Commissioners. The Port Authority must submit the minutes of its Board of Commissioners to the Governors of both States and each has the right to veto the minutes thus submitted to h im. '

The importance of the veto power becomes apparent when one realizes that the Port Authority can act only by resolution of its Commissioners and that each such resolution is subject to veto. The existence of the gubernatorial veto makes certain that Port Au­thority policies accord with those of the elected Chief Executives of both States.

The mere possession of this power results in continuing collaboration and close liaison between the Governors and the Commissioners. Its infrequent exercise is prooi that Port Authority policies are consistent with those of the Governors. The point was weU made by a commissioner of the Port of London Authority, who, when speaking of a control possessed over that Authority by the Minister of Transport, said: "I t has worked admirably in that it has scarcely been worked at a l l . "

Of particular interest as far as the Port Authority vehicular crossings are concerne( is the fact that the comprehensive 1931 Bridge and Tunnel Unification Statutes provide that:

The plans of the connections with state or muitLclpal highways of any (port authority) vehicular bridge or tvamel**'(Bhall be subject to the approval of the Governor of the State In which such connections s h a l l be located.2/

Accordingly, Port Authority plans for the connections of each of its bridges and tunnels with state and municipal highways need affirmative gubernatorial approval. On the Local Level

Though the Port Authority as an agency of two States is not subject to municipal regulation,' the Stj^tes, nevertheless, in many specific instances where they believed the public interest -would best be served, have required municipal consent with respect | to Port Authority action. Thus, the Compact specifically provides that:

no property now or hereafter vested In or held***by any county, city, borough, village, township or other municipality, s h a l l be taken by the port authority, without the authority or consent of such**»county, ci t y , borough, village, township or other municipality.2/

Furthermore, the 1931 Bridge and Tunnel Unification Acts" originally provided l^Art. V I I , Port Compact (Footnote l ) . 5/cai. 5, Laws of N.J., 1931, as amended by Ch. I97 , Laws of N.J., 19k^; Ch. k&. Laws oi N.Y., 1931, as amended by Ch. 163, Laws of N.Y., 19 5• ] 6/Ch. 333, Sec. 2, Laws of N.J., I927; see also Ch. 7OO, Sec. 2, Laws of N.Y., 1927, amended by Ch. 215, Laws of N.Y., 1956. 7/Ch. h. Sec. 10, Laws of N.J., I93IJ Ch. k j , Sec. 10, Laws of N.Y., I931. e/Town of BlooBfleld v. Hew Jersey Highway Authority, I 8 N.J. 237 (1955). 2/Art. VI. Port Compact (Footnote l ) . 10/Chap. k, Laws of N.J., 1931j Chap. ^7, Laws of N.Y., I 9 3 I .

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that the plans for the connections of Port Authority bridges and tunnels with State and municipal highways were subject to the consent of the municipalities in which such thoroughfares are located.

These twin provisions—that prohibiting the takii^ of municipal property without municipal consent, and that requiring affirmative municipal approval for the plans of the connections of Port Authority brieves and tunnels with state and municipal high­ways—made the construction of Port Authority vehicular crossings almost wholly de­pendent on the Port Authority's ability to reach a voluntary agreement with the mun­icipalities concerned. For more than 20 years, until 1953, the legislatively designated system of mutual Port Authority municipal cooperation and accommodation had worked exceedingly well.

In 1953, however, the Port Authority was unable to reach an agreement with the Township of Weehawken, New Jersey, as to the price it should pay for the acquisition of certain municipal tennis courts which lay directly in the path of the approaches to the Lincoln Tunnel's third tube. For a while this controversy threatened to prevent the construction of this vitally needed artery even though the Tunnel's existing two tubes had already reached capacity and trans-Hudson traffic was increasing at a rapid annual rate.

It appeared that the only way to break the deadlock was legislative action, and thus in 1954 the two legislatures by concurrent enactments^^ amended the 1931 Bridge and Tunnel Unification Acts to provide that municipal property required for Lincoln Tunnel purposes may be condemned by the Port Authority without municipal consent if the State in which the property is located authorizes such action." Agreement between Weehawken" and the Port Authority obviated the necessity for such State authorization in connection with the Lincoln Tunnel. But the lesson of this incident was remembered in the statutes confirming the Port Authority's power to construct the George Washing­ton Bridge's second deck." On the approval of the New Jersey State House Commis­sion, which consists of the Governor and other high ranking executive and legislative personnel, * the Port Authority may condemn municipal property in New Jersey for George Washington Bridge purposes," after i t has f i r s t made a bona fide attempt to acquire such property from the municipality.

The 1954 Lincoln Tunnel statutes also removed the necessity of municipal consent, while retaining the requirement of gubernatorial approval, for the plans for connections between Port Authority bridges and tunnels and State and municipal highways. How­ever, the concurrent acts specified that either State acting alone could by appropriate legislation re-impose the necessity for such municipal consent." Simultaneously with the passage of these concurrent laws. New York, by unilateral act, reimposed the re­quirement of municipal consent for bridge and tunnel connection plans with state and municipal highways." Also New York has never empowered the Port Authority to condemn municipal property. |On the Federal Level

Before this discussion of the governmental framework in which the Port Authority acts is concluded, the role of the Federal government must be mentioned.

The Port Authority's creation under the Constitution's Compact Clause" is itself a Ivivid illustration of the way in which the Federal system affects State activities. Inci-Identally, this was the f i rs t time that the Compact Clause had provided the basis for a permanent interstate agency. iu/Ch. 11, Laws of N.J., IS^h; Ch. l80 . Laws of N.Y., 19^k. pg/Ch. 11, Laws of N.J., 195* , Sec. 2; Ch. l8o , laws of N.Y., 195!^, Sec. 2 (Amending

c. 16 of the 1931 Acts). J/New Jersey. h/Ch. 156, Laws of N.J., I956; Ch. 807, Laws of N.Y., 1956. 5/W.J.S.A., 52:20-1. 5/Ch. 156, Laws of N.J., 1956, Sec. 8. .J/Ch. 11, Laws of N.J., 195^, Sec. 2; Ch. 18O, Laws of N.Y., 193h, Sec. 2 , (Amending lec. 10 of the 1931 Acts). .B/Ch. 180, Laws of N.Y., I954, Sec. 4.

'U.S. Constitution, Art. I , Sec. 10, Clause 3 .

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The Port Authority's four interstate bridges were constructed pursuant to the Fed­eral Bridge Act of 1906. This Act requires that bridge tolls be reasonable and just. In 1937 the Secretary of War, and four times thereafter the Secretary of the Army, re­jected complaints alleging that Port Authority tolls were unreasonable.

Furthermore, the Federal bridge statutes require that plans for the construction of brieves over navigable waters be approved by the Secretary of the Army to assure lack of interference with water navigation. Recently, the Port Authority received the Sec­retary of the Army's approval of its plans for the under-decking of the George Washing­ton Bridge.

INTER-AUTHORITY COOPERATION AND CONSTITUTIONAL HOME RULE IN NEW YORK

By 1954 it was obvious that there would not be sufficient arterial facilities to meet the needs of the Port District. In the eight years between 1946 and 1954 trans-Hudson traffic had increased 77 percent. Within New York City itself, the single-state T r i -borough Bridge and Tunnel Authority experienced similar traffic increases on its fa­cilities.

Moreover, the proportion of total trans-Hudson traffic generated in areas other than Manhattan had been growing steadily during the last two decades, from about 40 percent in 1935 to almost 60 percent twenty years later.

In recognition of these facts the Port Authority together with the single-state T r i -borough Bridge and Tunnel Authority initiated, in 1954, a pioneering cooperative effort to plan for the region's future highway needs.

The joint study of the two authorities recommended the construction of a group of arterial facilities which would enable vehicular traffic to by-pass the congested island of Manhattan.

In 1955 a series of related statutes adopted the joint study recommendations.^ This "statutory package" (a) authorized the two Authorities to cooperate in constructing a bridge across the Narrows of New York Harbor connecting Brooklyn with Staten Island, (b) empowered the single-state Triborough Authority to construct a bridge at Throgs Neck connecting the New York City Boroughs of Queens and the Bronx, and (c) con­firmed the Port Authority's power to construct a second deck to the George Washing­ton Bridge including a bus passenger facility appurtenant to the expanded brieve.

Shortly after the passage of these acts, taxpayers whose homes were needed for Narrows Bridge purposes commenced an action to restrain all "joint study" construc­tion, contending that the statutes authorizing the construction violated the New York Constitution's Home Rule provisions. This contention was made even though the leg­islation resulted from a cooperative endeavor of a bi-State agency and a single-State authority whose Commissioners are appointed by New York City's Mayor.

Plaintiffs contended that the legislation dealing with the Port Authority was invalid in that it failed to contain a "home rule message;" that is, a municipal request that the state legislature pass a given measure. The Constitution requires that such mes­sages must be received in connection with all special legislation dealing with " . . .the property, affairs of government of any city. Plaintiffs also contended that the "home rule message" submitted to the New York Legislature on behalf of Triborough's| statutes failed to comply with the constitutionally prescribed procedure.

It should be pointed out that although each of the Port Authority's vehicular cross­ings is partially located in New York City, no Port Authority legislation had ever re­ceived a so-called "home rule message." The Port Authority's position had always been that no such message was needed because its legislation was concerned with matters of state and interstate concern. However, the courts had never before pass­ed on this question.

In the "joint study" case the Port Authority's position was sustained on the ground

19a/34 Stat, eh, 33 U.S.C. Sees. k91-h9&. 25/Chs. 8o6 through 809, Inclusive, laws of N.Y., 1955. 20a/N.Y. Constitution, Art. IX, Sec. 11.

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that its legislation involved matters of state and interstate concern and thus needed no home rule message.'^ The Court of Appeals held that although the Narrows Bridge wil l be located wholly within New York State, i t

***U}ie the second deck on the George Washington Bridge, i s of an in­terstate character and tlierefore properly brought within the Jurisdic­tion of the Port Authority. Ipso facto, i t i s a matter of state concern.22/

Moreover, the court held that each of the four statutes involved, including the two relating to Triborough, did not need home rule messages because all the facilities constituted parts "of an interstate project.. .and consequently are matters of state con­cern."

The relief with which the Port Authority's legal staff greeted this decision can be imagined—if the case had gone the other way, almost 40 years of Port Authority legis­lation might have been questioned as invalid.

HIGHWAY CONSTRUCTION, TAXATION AND ZONING RESTRICTIONS IN NEW JERSEY

Conflicts between the State's concern with highway construction and local municipal interests have also come before the New Jersey courts.

In the area of local assertion of taxing power over properties acquired but not used for transportation purposes, the municipal challenge has met with a qualified success. Fortunately, the basic tax immunity of highway rights-of-way has not been questioned.

The Port Authority's construction of the Lincoln Tunnel, however, raised tax ques­tions because of two problems common to highway construction. As an alternative to condemning portions of lots and paying compensation for damages to the remainder, the Port Authority had purchased land, including some which could not be used for tun­nel purposes. In addition, certain other property the Authority ejcpected to need proved surplus because of modifications in tunnel design. The tunnel's authorizing legislation specified that no taxes should be paid on any property "acquired or used" for tunnel purposes. In considering a claim by Union City that it could, nevertheless, tax these excess properties, a New Jersey court construed this provision in its disjunctive sense as affording exemption.*' However, the courts's decision was over-ruled thirteen years later by the New Jersey Supreme Court when Turnpike Authority highway con­struction raised similar problems under an identical exemption clause.**

The later case involved an assessment by Washington Township against certain ^racts outside the Authority's right-of-way which had been acquired as parts of lots purchased from the owners. Recognizing that purchase of an entire tract could be lore economical and, therefore, more consonant with the public interest than condem­

nation of a part, the New Jersey Supreme Court approved the acquisition. However, Vt held that the property was not being used for a public purpose, and concluded that if the property were nevertheless held exempt, as in the Lincoln Tunnel case, merely )ecause it had been acquired for a public purpose, the tax exemption provision would riolate the New Jersey Constitutional provision requiring assessments to be made

I'under general laws, and by uniform rules".*® To the New Jersey Supreme Court, this lause prohibits exemption of property solely because of the owner's governmental tatus and requires that tax exemption be conferred on property of public agencies only yhen the property is actually devoted to a public use.

The decision's effect is to put a premium on efficiency both in the acquisition of inds for highway purposes and in the disposition of any excess which might be acquired,

itself, the decision is certainly one which can be lived with but the question was how

^ y - ^ l a n et a l . v. Wagner et a l . , the Port Authority, Triborough Bridge and Tunnel Au-Ihority et a l . , 2 Misc. 2d 89 (Kings Co. I956) aff'd 3 A.D. 2d 936 (2d Dept. 1957) aff'd

[f.Y. 2d 575 (1958). /h N.Y. 2d 575 , 581t (1958). /Port of New York Authority v. City of Iftiion City, 19 N.J. Misc. h21 (19'H). /New Jersey Turnpike Authority v. Washington Township, I 6 N.J. 38 (195^). /N.J. Const. Art V I I I , Sec. I , par. 1.

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far the court would extend the concept that land acquired for public use was not neces­sarily held for such use. In a case involving the Port Authority's Newark Truck Ter­minal, the Authority was successful in confining the holding of the Washington Town­ship case to its facts."'

The Truck Terminal case arose out of a peculiar set of circumstances. A provision in a labor union contract which prohibited long-haul carriers from transferring freight to local cartage companies rendered the Terminal's planned operation impossible. Meanwhile, because of the Korean War, the Air Force needed the Terminal and rented it from the Port Authority.

At this point, and relying on the Washington Township case, the City of Newark sought to tax the property. The New Jersey Supreme Court, however, distinguished the Washington Township case on the ground that whatever the Terminal's current use, it was nevertheless being held by the Port Authority "with the present design to devote it within a reasonable time" to the public use originally contemplated."'' This means that property acquired for public use retains its tax exempt status unless and until the orig­inal intention has been abandoned. The author believes this holding should prove help­fu l in preventing destructive taxation of public property where fortuitous circumstances delay its application for its intended purpose.

The New Jersey Supreme Court has also made it clear that the Washington Township case cannot sanction local interference with highway construction. Bloomfield Town­ship tried to prevent construction of parkway service areas within its territorial l im i t s " | urging that the Highway Authority was subject to its zoning rules which had established the proposed service area site as a residential zone. The Supreme Court, however, confirming the rule that municipal interests are subordinate to those of the State in highway construction, held that the State-enacted parkway legislation must be construed] to render the local regulations inapplicable.

26/Port of Nev York Authority v. City of Nevark, 20 N.J. 386, (I956). 27/An alternate ground for the Supreme Court's holding vas I t s conclusion that even though the tennlnal was not being used precisely as contemplated at the time of I t s con­struction. I t was being put to a public use consistent with the original le g i s l a t i v e un­derstanding of the purposes to be served by Port Authority projects. In this contention,! we were helped by the fact that potential defense needs had been advanced by the Hew York New Jersey Port and Harbor Development Commission as one of the reasons for reccmmending that the Port Authority be created. 2^Town of Bloomfield v. New Jersey Highway Authority, I 8 N.J. 237 (1955).

The Future of Highway Legal Research DAVID R. LEVIN, Chief, Highway and Land Administration Division, Office of Re­search, U.S. Bureau of Public Roads

»A DRAMATIC event in the highway legal field transpired approximately seven years ago. In 1952 highway officials decided collectively to sponsor a thorough study of high­way law. Such a project was set in motion by the Highway Research Board, at the re­quest of the American Association of State Highway Officials.

It is the purpose of this paper to summarize briefly what the Board's Highway Laws Project has accomplished to date, what yet remains to be done on i t , and some new possible direction for future highway legal research.

ACCOMPLISHMENTS OF HIGHWAY LAWS STUDY The work of the Board's Highway Laws Study is accomplished in a variety of ways.

Its principal activity is centered in a comprehensive analysis of the functional segments of State highway codes. Additionally, monthly memoranda of limited scope are issued, involving new and current legal issues and developments. Assistance is also given to State highway departments and others on specialized subjects, pursuant to special re­quest. Members of the Highway Laws Committee and Highway Laws Staff also partici­pate, as requested, in public meetings of national, regional, or Statewide scope. Fin­ally, the Laws Project has served to stimulate and develop legitimate and necessary interest in highway law, as part of the over-all highway activity. It has also provided a forum for analysis and discussion of current highway legal problems.

The Highway Laws Project is responsible for an increasingly extensive body of pub­lished material. Its f i rs t publication, issued in 1954, was entitled "Better Laws for Better Highways" (HRB Bull. 88). This document laid the groundwork for the develop­ment of the Highway Laws Study as it is known today, and indicated the need for re­searching the vast body of developing law concerning the highway activity.

The following year, the Laws Study published a document which has since become classic, "Relocation of Public Utilities Due to Highway Improvement: An Analysis of

jegal Aspects" (HRB Special Report 21, 1955). This was an exhaustive study of statu­ary and case materials dealing with the legal responsibilities for paying for public u-i l i ty relocation necessitated by highway improvement. It was made available at a time vhen this issue was being debated by many interested persons, and was helpful to the ^oi^ress of the United States, many of the State legislatures, public and private attor­neys, and many others.

Throughout its deliberations, the Highway Laws Committee has been sensitive to urrent needs in the realm of highway transportation. Accordingly, soon after the assage of the Federal-Aid Act of 1956, which recognized the National System of Inter-tate and Defense Highways (involving control of h^hway access) on a scale never leretofore known, the Highway Laws group undertook to study the legal problems as-

lociated with the Interstate System. In 1957, i t published a study on control of high­way access entitled, "Expressway Law: An Analysis" (HRB Special Report 26).

Recognizing, too, that the Cot^ress had set up a long-rai^e plan for the improve-jient of the Interstate System and that the acquisition of lands in advance of actual use as a necessary adjunct of that plan, the Highway Laws Staff undertook to gather and lalyze legal and other related materials pertinent to the problem. This study was ^blished as "Acquisition of Land for Future Highway Use: A Legal Analysis" (HRB pecial Report 27, 1957).

That same year, at the Annual Meeting of the Highway Research Board, the Highway iws Committee sponsored a Symposium on Highway Law. B; examined h^hway law

|om the standpoint of the city, county. State and Federal governments. The papers 17

18

given at this meeting, together with a summary of important highway legal develop­ments during 1957, were published as "Highway Laws—1956" (HRB Bull. 145).

The Highway Laws Committee was aware that one of the most vexing problems in­volving highway modernization concerned the matter of acquiring the necessary lands. Accordingly, i t designated land acquisition as having top priority. As a result, the f i r s t segment of this study was published in 1958 as "Condemnation of Property for Highway Purposes: A Legal Analysis, Part T' (HRB Special Report 32). The four as­pects of the condemnation process included in this segment of the study of land acqui­sition were the delegation of the authority to condemn, which is basic, property which may be taken by condemnation, the types of legal estate which may be acquired by con­demnation, and the designation of the procedure to be followed in eminent domain pro­ceedings.

Perhaps a word is in order here concerning the general format of these studies. Pursuant to the assigned responsibilities of the Committee on Highway Laws of the Board, the constitutions, statutes, and judicial decisions are isolated and analyzed, so that a composite view may be had as to what is now the law on a particular subject. From these materials and analyses, and in light of new needs as they emerge, an effort] is made to identify the substantive elements that should be considered in the light of a maximum of adequacy of highway law.

The Highway Laws Project continued to research the land acquisition problem. The next segment of this work was published in 1958 as "Condemnation of Property for High-j way Purposes: A Legal Analysis, Part H" (HRB Special Report 33). The particular aspects of right-of-way acquirement dealt with in this report involved the stage in con­demnation proceedings at which the condemnor may take physical possession of the needed lands, possession pending appeal, preferential treatment of condemnation cases on the court calendars, and the right of highway officials to make entry upon lands for survey purposes.

This monograph was followed by a study of statutory declarations of legislative pur­pose in the highway field. As you know, these declarations contain the objective or in­tent of the legislatures in enacting a particular law. Accordingly, they are very impor tant. An analysis of these laws and their elements are contained in a publication of the Laws Project, entitled "Legislative Purpose in Highway Law: An Analysis" (HRB Spec ial Report 39, 1958).

At the 1958 Annual Meeting of the Highway Research Board, the Laws Committee sponsored an open meeting where a number of important current legal problems were aired, including control of highway access and the police power, the law and highway modernization, the program of legal research at the University of Wisconsin, and the progress of the Highway Laws Project. These materials and the annual report for that year were published as "Highway Laws-1958" (HRB Bull. 205).

About this time, the Federal-Aid Highway Act of 1958 was enacted. In i t , the Con­gress enunciated a new policy with respect to outdoor advertising along the Interstate System. In connection with the provision, i t became essential, quickly, to know what | the present status of State law was with respect to outdoor advertising. The Highway Laws Project responded immediately, and programmed a study of outdoor advertising! legislation as top priority. As a result, it published a monograph, entitled "Outdoor Advertising Along Highways: A Legal Analysis" (HRB Special Report 41, 1958). Var-| ious types of State legislation dealing with outdoor advertising were included, and the^ in the aggregate are compared with the elements of the Federal law on the subject, an the National Standards promulgated in connection with i t .

Again, at the January 1959 Annual Meeting of the Board, the Highway Laws Commi tee sponsored an open session that contained significant contributions to highway laws| research. These included papers on the codification of Federal-aid legislation, how an attorney general views highway law, and two State highway law studies. These an(| a commentary on current legal developments involving the highway activity during the past year are published in HRB Bulletin 237, entitled "Highway Laws-1959."

Heavily involved in highway improvement programs is the matter of highway syste| classification. The Highway Laws Project has researched this aspect of highway lav and has already published "Highway System Classification: A Legal Analysis-Part

19

(HRB Special Report 42, 1959), dealing with the primary highway system. General­ized data, showing the relationship of the primary system in the States to other sys­tems, are also included.

The Highway Laws Project also has assembled and analyzed all provisions in State highway codes relating to Federal aid for highway purposes. Provisions involving State assent to the Federal-aid highway program, delegated authority to permit State cooperation in that connection, and related matters have been included. These are now available in published form, issued by the Laws group, entitled "Federal-Aid Pro­visions in State Highway Laws: An Analysis" (HRB Special Report 48, 1959).

Cutting across many of the daily activities of State and local highway departments is the matter of highway intergovernmental relationships. It is impossible these days, in the very nature of things, to modernize our highway system without the broadest kind of cooperation at all levels of government. This has been made the subject of an extensive study of the Laws Project, identified and published as "Intergovernmental Relations in State Highway Legislation: An Analysis" (HRB Special Report 49, 1959).

Underlying the delegated authority to build and maintain highways in the public inter­est are the State and Federal constitutions. These organic documents have been ana­lyzed, also, and reported upon by the Highway Laws Committee, in a recent document, entitled "State Constitutional Provisions Concerning Highways: A Legal Analysis" (HRB Special Report 50, 1959).

As already indicated, a supplemental activity of the Highway Laws Project is to is­sue brief monthly memoranda, setting forth the most important current court decisions, new legislation or related legal items. Since November 1953, when the f i rs t Laws Memorandum was issued, the Committee has sponsored 39 similar memoranda. There is good reason to believe that these timely releases are very helpful to State and local highway officials and many others.

The laws reports already published and released have been enumerated in some de­tai l . The Highway Laws group has undertaken other studies, and these are now in var­ious stages of completion.

The final segment of land acquisition law has been researched, reviewed by the Laws Committee and the State highway departments, and a final manuscript is now ready for the printers. It wi l l be published as "Condemnation of Property for Highway Purposes: A Legal Analysis, Part H I . "

Through the years, a vast body of statutory and judge-made law has developed on Ithe matter of highway contracts, and the accelerated highway program has further {stressed the current importance of this subject. Accordingly, the Highway Laws

jroup has just completed a comprehensive study, entitled "Highway Contracts: A Le-;al Analysis." It has been duplicated, and is being submitted to the Laws Committee ind the State highway departments for review.

A variety of administrative forms of organization and management characterizes le highway activity of the nation. The extent to which this has a legal foundation in le State statutes has been researched by the Laws Project, and a monograph on this

Subject wi l l be available shortly for review. It wi l l be entitled "Highway Administra­tion: A Legal Analysis."

As already indicated. Part I of the highway system classification has already been lublished, dealing with primary State highways. The other segments, involving sec-ndary highway systems, county road systems, urban systems, township road systems, nd miscellaneous systems, is being put together in report form and wil l soon be re-eased for review in a document, entitled "Highway System Classification: A Legal Analysis-Part H . "

An outline for a study by the Laws Project of maintenance and drainage law has |een prepared. The group is seeking to go forward with this analysis at the earliest sssible time.

Mindful of the current importance of the highway finance problem and the interest of e Congress in factual information on the subject, the Highway Laws group has also gn work on the law of highway finance. It is in the process of reviewing what is al-

y now available on the subject, so that a minimum of duplication wil l result. It 3 to tackle the matter almost immediately.

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In addition to these many subjects, already researched or now under way, there are other aspects of highway law that remain to be analyzed. These include traffic engineering; toll roads; budgeting, accounting, and reporting; public relations; de­sign; construction; landscaping; size and weight regulation; and others. None of these are particularly voluminous in nature, and, accordingly, should require only a minimum period to complete. It is the hope of the Highway Laws Committee that these can be largely completed by the end of 1960.

This effort completed, the Highway Laws Project wi l l have accomplished the mis­sion it originally set out to undertake, as i t is understood by the Highway Research Board and the American Association of State Highway Officials.

COORDINATION OF SEGMENTS OF LAWS RESEARCH With this task completed, one might inquire: What remains to be done, from this

point on? Is not everything done that remains to be done? The answer is emphatically in the negative. While the Initial objective has been

accomplished, additional research in the highway law field is obviously needed. One such additional task is the coordination of the many components of highway law that al­ready have been researched or wi l l have been researched by the end of this year.

As an illustration of what this might encompass: the matter of statutory or legal def­initions of terms and concepts might be the beginning. Generally included have been terms and definitions in connection with the individual subjects studied; such as, ex­pressways, land acquisition, design, etc. Authorities on State statutory code design indicate that all terms and definitions with respect to a major segment of the statutes should best be grouped together in a single chapter, instead of being scattered through­out 100 or 200 pages of text; and that these should not generally vary in their applica­tion to different aspects of the same subject; in short, the definition of control of high­way access used in connection with an authorization for expressways should be the same as one used in connection with the acquisition of the necessary rights-of-way for such facilities.

Again, the matter of highway system classification should be considered. The Com­mittee has sought to group together, in two monographs on this subject, many of the related statutory provisions. Yet, in the very nature of things, when the individual segments of the Laws Project were being researched, i t was impossible to do a thor­ough job of coordination. Highway system classification is partially involved in inter­governmental relations in the highway field, because this frequently involves several different levels of government. Highway system classification also can involve legis­lative declarations of purpose, because such declarations are found to exist in connec­tion with the designation of highway systems in a number of States.

In short, approximately 25 individual components of highway law wil l have been re­searched by the-end of the year. What needs to be done after that time is to put these individual pieces of the jig-saw puzzle together, so that they all f i t snugly together; so that every part is reconciled with every other part, particularly where parts are interrelated.

This effort at synthesis and reconciliation would involve only a small fraction of the| resources that were required to do the larger task that is now nearly completed. But to stop short now, without taking this next step, would be to sell a good investment short. If it is estimated that approximately $150,000 wi l l have been spent on the Highl way Laws Project by the end of the year, an additional 5 to 10 percent would make the principal investment pay off much more adequately than it otherwise wi l l . This cannot be stressed too heavily.

KEEPING THE LAWS PROJECT UP-TO-DATE In addition to coordination and reconciliation of the components of the Laws Projeclj

with each other, the need has been mentioned to keep the basic materials developed the Laws Project up-to-date. The hope was e^qpressed by the American Association ' State Highway Officials two years ago that this could be done through the Research Correlation Service of the Highway Research Board. Depending on the thoroughness I

21

with which the task is undertaken, at least one, and possibly two full-time legal re­searchers would be needed to do the job. It could involve both the statutory and judge-made law. Periodic memoranda and publications would be the natural outlets for the material thus developed.

A MODEL HIGHWAY CODE The ultimate objective of highway laws research is to assist in the revision and up­

grading of highway laws, so that a better highway system can be provided the nation, at minimum cost. While the research already accomplished, i t is hoped, has been and wil l continue to be helpful in this respect, the most effective packa^ng of the find­ings of laws research, f rom the standpoint of State and local highway departments, could well be in the form of model highway legislation. In a completely coordinated manner, this might be identified as a model highway code.

It is true that the States themselves are perhaps in the best position to determine, individually, what type of legislation they want to recommend and enact. But anyone familiar with the nature and pace of today's highway activities wi l l readily admit that it is thoroughly unrealistic to escpect that each State wi l l devote the time and resources necessary to do a workmanlike job. The fact is, that the States banded themselves to­gether in the form of the Highway Laws Project to do collectively what they realized they would not do individually. Moreover, they realized that great efficiencies would be achieved by doing a job together, in comparison with doing the job individually.

There are some who have a mistaken notion of what is involved in the derivation of sound and reasonable model highway legislation. They mistakenly believe that this pre-empts policy decisions which the States and local units should make for themselves. Model legislation, if properly formulated, does no such thir^. All it seeks to do is to set forth, in well-drafted and researched form, all of the elements necessary to be considered in connection with each phase of the highway operation. From this, each State can approve that which i t believes to be applicable to its own situation and reject that which i t believes to be impractical in its case. Model legislation at least alerts everybody concerned as to what the components are of each problem.

The case of the model limited-access highway law, promulgated at the request of the States before World War n might be considered. This law purports to authorize the control of highway access, sanctions the acquisition of property in connection with such facilities including access rights, deals with certain intergovernmental relations problems involved, provides for the provision of frontage roads, etc. The author thinks i t is a fair statement to say that that the States generally have found this model act very helpful.

Now the model limited-access highway law did not purport to usurp any of the policy [decisions of the State. It a particular State wanted to control highway access through

ie legislative process, i t could use those portions of the act that were pertinent; if |it did not want to do so, i t just did not enact the law. If State X wanted to control ac-:ess only partially, i t could do so; if i t wanted to establish freeways, with fu l l control af access, it was enabled to do so by using the model act. In short, access could be Controlled or i t could not be controlled at all , or if controlled at all , such control could range from something over 0 to 100 percent of access control. The model act gave the ^tates the cue to the power to control access permissively, not mandatorily.

The matter of land acquirement might be considered to give a current illustration f how helpful i t would be to have model legislation. It is true that constitutional pro-isions vary among the States with respect to the taking of property for public purposes y eminent domain. In this field, i t might be necessary to produce two or perhaps ven three model acts, or one act with three variable provisions, dependii^ on what *e constitutional provision involved would be.

Or even the field of highway administration could be considered. Model legislation bould not seek to set up inflexibly the single-executive type of highway department or ]ie commission type. In this instance, at least two different models would be prepared,

two variations of the same model. In other words, if a State wanted to embrace the }mmission-type of highway organization, i t could turn to that model, and get the sub-

22

stantive elements necessary to do the job. If they were more interested in the single-executive type, that model would give them the answers.

A helpful monograph on the subject of intergovernmental relations in the highway field could be written. But would i t not be much more helpful to have a model act or model provisions on the subject of intergovernmental relations, so that the States could examine something more specific, and accept or reject the elements of the model act, according to its application in a particular State.

The preparation of model legislation, is, in many respects, similar to the work un­dertaken so effectively through the years by the Commissioners on Uniform State Laws. That group has dealt with a wide variety of subject matter, and has done so in a manner wholly acceptable to the several States, in fact, sponsored by the States and derived from State action as such.

Another striking illustration of effective action in this field over a period of years is the Uniform Motor Vehicle Code, which has been so helpful in seeking betterment in the field of motor vehicle operations.

At many of the State and regional meetings of highway officials during the last few years, State highway departments have been clamoring for model legislation. They have sought this tool because it would save them time, effort and resources. It would place in their hands collectively an effort of a caliber that could not be done individually. Yet up to this point, with an exception or two, very little has been done to respond to this need. It is hoped that the ways and means wil l be found shortly to assist the States in this very important respect. As far as the author is concerned, it constitutes the logical consummation of the research efforts of the Highway Laws Project.

Now just one caveat about the use of model legislation: Obviously, i t should be used only after highway lawyers in a particular State have carefully examined it in relation to the State constitution and the existing body of law and mores in that State, and should | be thoroughly reconciled with the existing legal framework.

What has been said in this section on model legislation has been ventured by an indi­vidual exposed to the field for more than two decades, rather than by the Secretary of the Highway Laws Committee of the Highway Research Board.

LEGAL RESEARCH VIA ELECTRONIC COMPUTERS Electronic computers and the punch card are regarded today as most valuable de­

vices to facilitate the accurate and amazingly rapid derivation of all sorts of answers to complex mathematical, physical, statistical, and other types of problems. Even the social sciences, such as economics, find substantial aid and comfort in these elec-| tronic gadgets of the mid-twentieth century.

The question might be put abruptly: Why cannot legal research be assisted with eled tronic computers and the punch card, especially designed to cope with the subject matti involved? If these modern machines could be so put to work for the lawyer, countlessf hours of valuable professional time could be saved. Anybody familiar with the nature of the legal activity knows that the bulk of the lawyer's time, in most cases, is dedi­cated to searching statutes, ordinances, court decisions, and other legal sources for material pertinent to the proposition at hand.

It would seem that the f i rs t thing lawyers collectively must do is to make up their minds what it is that the machines are to do. The answer to this, must be based on aij analysis of various steps constituting the lawyer's activities.

Perhaps one of the most obvious areas for mechanization of the legal research pro-] cess seems to center around the case law, involving State reports. The profession ha evolved, in this connection, State and Federal digest systems, national digest system! regional reporters, decennial digest systems, and other similar digests and referencj works. Most of these classify the principal issues or subject matter of each case on ; logical basis. While these systems classify and cross-classify the major issues, miij subjects are either ignored entirely or dealt with rather inadequately. Accordingly, the author can envision the classification and derivation, at a moment's notice, of sul| stantially greater detail, with respect to the subject matter of each case, by the use punch cards or electronic devices.

23

If the subject matter—perhaps an enlargement of the so-called key system of legal classification—can be mechanized in an efficient and economical manner, the lawyer would need only to determine which key or code number he is seeking, and a single exertion could yield references to a multiplicity of cases or materials involved. It is possible that a somewhat similar system might be envisioned for the appropriate clas­sification of statutory, ordinance, constitutional provisions, and attorney general opin­ions.

So important does the legal profession view the possibilities of mechanizing legal research that a special committee of the American Bar Association has been created in the Section of Bar Activities, known as the Committee on Electronic Data Retrieval. (The chairman of the committee is Richard F.C. Hayden of Los Angeles. Professor Layman B. Allen of the Yale Law School is particularly interested in the substance of this program and edits a quarterly newsletter called "MULL" which stands for Modern Use of Logic in Law.) This group has sought to develop in the profession the concept of relevance, so that the body of legal precedents on any given legal point can be pack­aged in a form that can be identified instantly by the use either of electronic devices or punch cards.

It wi l l be recognized that in this kind of possible mechanization of legal research, the key may be found to speed up, manjrfold, the quest for answers which the lawyer seeks, working both for public or private ends.

LEGAL RESEARCH ON SPECIAL CURRENT PROBLEMS Aside from the applications of legal research, referred to in the foregoing sections,

there are countless other specific current problems that have legal overtones requiring legal study.

One such problem might be identified as the highway interchai^e problem. The de­velopment of intensive land uses at approaches to expressway interchanges and inter­change areas may render these facilities functionally obsolete in a few years unless a proper balance is achieved between the design standards of the access facilities and the pattern of land development in these areas. Research on this problem is already under way, pursuant to a specified research design, at the University of Washington, under the direction of Professor Robert Hennes, by Professors William L . Garrison and Edgar M. Horwood. Study of the problem is also being undertaken by the U.S. Department of Agriculture. Both projects are being undertaken for and financed by the Bureau of Public Roads. Exploration of the possibilities along these lines must lecessarily involve a study of the available and potential legal tools that could assist solution of this developing problem, through the use of the State police power, eminent iomain, and other measures.

Another segment where effective legal research can be most helpful involves city planning and highway planning. There are a number of city planning and highway plan­ting practices and devices. A number of these are now so designed and used as to >perate independently of each other. There is urgent need that a number of these be *evised, enlarged, or otherwise sharpened up so that a more realistic job can be done,

bringing urban planning and highway planning closer together than they have been in he past, in many areas. (A modest study of this problem is now under way at the oint Center for Urban Studies of the Massachusetts Institute of Technology and Har-ard University, sponsored by the Bureau of Public Roads.) Here again, the legal as-ects of the problem could constitute one of the most important elements of the solution

the difficulties involved. A third area concerns the derivation of better legal tools for transportation improve-

lent, particularly in the urbanized areas of the nation. The present legal equipment |eeds to be upgraded and improved in significant ways. Special study could critically iraluate what is available and what is needed to achieve a desirable modernization of ghway accommodations. A significant contribution can be made in this area alone by !gal researchers. Another subject for legal research might be identified with the sed to coordinate highway and parking facilities. In the urban areas, one cannot build pressways without recognizing, at least from a research point of view, the compan-

24

ion problem of providing the parking accommddations necessary to take care of the ve­hicle at rest. An imaginative study of how highway facilities can best be integrated with parking facilities could pay handsome dividends. An expert group recently delib­erated on this problem, at a Conference on Coordination of Parking and Expressways, Ann Arbor, Michigan, November 19-20, 1959, sponsored by the Transportation Insti­tute of the University of Michigan and the Automotive Safety Foundation. Proceedings wi l l eventually become available. An Important aspect concerns the legal aspects, of course.

There are additional areas where effective legal research could supply some urgent­ly-needed answers to current transportation problems. The fact is, only recently has it been realized that research on legal problems affecting the highway activity can pay handsome dividends. This has been demonstrated during the last five years, with the Highway Laws Project, other phases of the program of the Highway Research Board, the activities of the AASHO, the Bureau of Public Roads, and others.

CONCLUSION Progress that has been made in the field of highway legal research has been dis­

cussed. It is apparent, that while progress has been made during the last five years, particularly with the Highway Laws Project of the Board, much remains yet to be done.

To reap the fu l l benefits from the expenditures alreacfy made in this field and to supply a current need, the material already developed must be kept up-to-date. Addi­tionally, the many components of the Laws Study that were developed individually should| be reconciled and coordinated. The derivation of model legislation seems a logical next step. Finally, many special current legal problems in the transportation field are apparent, and these problems should be solved.

Discussion J.E. HAVENNERand J.W. MCDONALD, Automobile Club of Southern California-Pos-sibly the most critical deficiency in urban transportation is not in the areas of physical facilities, competent personnel, or adequate financial resources.

The most critical deficiency of all may be in the area of administrative organization-] the assignment of responsibility and authority by state, county and local governments. Adequate placement of the responsibility for transportation planning and operations is a prerequisite to efficient use of existing facilities, efficient expenditure of funds, and efficient planning for future needs. In short, an adequate set of laws under which to operate is the foundation for planning and operation.

It is questionable that any urban area has solved the problem of adequate adminis­trative organization for governing metropolitan complexes. Most such areas have not even seriously tackled the problem and are st i l l governed by concepts designed to meet| the needs of the horse and buggy.

Certainly, strong support should be given to the work of the Highway Laws Commit­tee as i t turns to the fields of law which are involved in metropolitan problems. Only with this house in order can real progress be made toward effective area transportatio| planning in which highways wil l play such an important part.

Jt becomes increasingly apparent that i t is essential for the engineer to appreciate the relation between his work and the laws which determine how effective he may be. He should also recognize the importance of laws research as carried on here.

This is true at all levels, from the city traffic engineer who must work within the limitations of his city's ordinances, through state and local engineers whose effective­ness is determined to a great degree by state highway law and vehicle codes, to all engineers whose work is affected by Federal law.

The engineer and the attorney must be brought closer together— the engineer shoul^ make better use of the attorney in shaping the legal tools needed to do the job better. DAVID R. LEVIN, Closure—Mr. Havenner has certainly put his firmer on an impor­tant and sensitive aspect of the whole highway activity—the matter of administrative organization. In this connection i t can be announced that the Highway Laws Project has this subject under study and is making good progress on i t .

The Law of Highway Contracts MARY O. EASTWOOD, EDWARD J. REILLY, HELEN J. SCHWARTZ, ALFRED J. TIGHE, JR., and EDWARD J. ZEKAS, Staff Members, Highway Laws Project, High­way Research Board

• THIS TALK summarized a study to be published as Highway Research Board Special Report 57, entitled "Highway Contracts: A Legal Analysis." There is, therefore, no need for a comprehensive treatment of the subject here. The following is an outline of the topics covered in the talk and analyzed in the forthcomir^ report: CAPACITY OF PARTIES TO CONTRACT

Authority of Governments to Contract Special Authorities Having Power to Contract Authority of Officer Executing Contract

Prequalification of Contractors Agency Authorized to Qualify Contractors Examinations Qualification Requirements Classification of Contractors Subcontractors Exemptions Non-resident Contractors Hearing and Appeal Procedures

lANTI-FRAUD PROVISIONS Prohibited Interests in Public Contracts Collusion to Prevent Competition Other Provisions

COMPETITIVE BIDDING When Required Minimum Amounts Where Competitive Bidding Not Required Advertising and Publication Requirements

Method of Advertising Content of Advertisement

Submission of Bids Bid Security Required by Statute Withdrawal of Bid

RITERIA FOR HIGHWAY CONTRACT AWARD

ONTRACTOR'S BONDS

TATUTORY REGULATION OF SUBSTANCE OF CONTRACT Labor Standards

Wage Rates Hours of Work Anti-discrimination Provisions

Preference for Local Products Preference for Local Labor Provisions Concerning Patented Articles or Brand Names

I Other Provisions 25

26

PERFORMANCE Amending, Changing, Altering or Supplementing Contract After Award

Competitive Bidding Requirements in Relation to Contract Changes and Additions Completion Time Supervision, Inspection and Acceptance Default and Termination of Contract Payment

MISCELLANEOUS PROVISIONS Contracts for Utility Relocation and Grade Separation Contracts for Materials and Equipment Convict Labor

HRB:OR-l t l l

n p H E NATIONAL ACADEMY OF SCIENCES—NATIONAL RESEARCH COUN-I CIL is a private, nonprofit organization of scientists, dedicated to the

furtherance of science and to its use for the general welfare. The ACADEMY itself was established in 1863 under a congressional charter signed by President Lincoln. Empowered to provide for all activities ap­propriate to academies of science, it was also required by its charter to act as an adviser to the federal government in scientific matters. This provision accounts for the close ties that have always existed between the ACADEMY and the government, although the ACADEMY is not a govern­mental agency.

The NATIONAL RESEARCH COUNCIL was established by the ACADEMY in 1916, at the request of President Wilson, to enable scientists generally to associate their efforts with those of the limited membership of the ACADEMY in service to the nation, to society, and to science at home and abroad. Members of the NATIONAL RESEARCH COUNCIL receive their appointments from the president of the ACADEMY. They include representa­tives nominated by the major scientific and technical societies, repre­sentatives of the fedei-al government, and a number of members at large. In addition, several thousand scientists and engineers take part in the activities of the research council through membership on its various boards and committees.

Receiving funds from both public and private sources, by contribution, grant, or contract, the ACADEMY and its RESEARCH COUNCIL thus work to stimulate research and its applications, to survey the broad possibilities of science, to promote eff'ective utilization of the scientific and technical resources of the country, to serve the government, and to further the general interests of science.

The HIGHWAY RESEARCH BOARD was organized November 11, 1920, as an agency of the Division of Engineering and Industrial Research, one of the eight functional divisions of the NATIONAL RESEARCH COUNCIL. The BOARD is a cooperative organization of the highway technologists of America operating under the auspices of the AcADEMY-CoUNCiL and with the support of the several highway departments, the Bureau of Public Roads, and many other organizations interested in the development of highway transportation. The purposes of the BOARD are to encourage research and to provide a national clearinghouse and correlation service for research activities and information on highway administration and technology.

HIGHWAY

RESEARCl

BOARD

B U L L E T I ^

271.2&

NATIONAL R E S E A R C H

COUNCIL