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October 4, 1961


The opinion of the court was delivered by: Mercer, Chief Judge.

Pursuant to authorization granted by Public Law 446, 52 Stat. 110, defendant, City of Rock Island, prior to 1958, erected a bridge across the navigable waters of the Mississippi River to a western termination point in the State of Iowa. Hereinafter, sometimes that bridge is referred to as the Centennial Bridge. Pursuant to an amendment of Public Law 446, by Public Law 682, 70 Stat. 520, defendant adopted an ordinance for the issuance and sale of revenue bonds in the principal amount of some $4,650,000 for the purpose of financing the cost of reconstruction and enlargement of the bridge and its approaches. That ordinance provided that tolls would be charged for the use of the bridge, which would be allocated, first, to the expenses and costs of maintenance of the bridge, second, to provide a sinking fund sufficient to pay the interest and the principal as the same came due upon the bonded indebtedness and, third, to a bridge revenue surplus account.

The bond ordinance provided, among other things, that defendant might, by resolution of its City Council, cause up to 50% of tolls accumulated in any fiscal year in the bridge revenue surplus account to be transferred to the City Treasurer for defendant's general corporate funds account.

By his complaint, praying an injunction and other relief, plaintiff alleges that defendant, by resolution of its City Council, adopted July 1, 1960, caused the sum of $52,314.80 to be transferred from the bridge revenue surplus account to the Treasurer of defendant City. The theory of action underlying each count of the complaint is that the bond ordinance insofar as it permits bridge revenue funds to be transferred to defendant, is a violation of the toll provisions of Public Law 446, as amended,*fn1 33 U.S.C.A. § 529*fn2 and is an invalid tax upon interstate commerce in violation of Article I, Section 8 of the Constitution of the United States.

Defendant has moved to dismiss the complaint, challenging, upon several bases, the existence of federal court jurisdiction of the subject matter. An understanding of that issue which is now before the court requires summarization of the complaint in some detail.

Under Count I of the complaint, plaintiff alleges a cause of action in his own behalf as a user of the bridge and on behalf of a class composed of all other users of the bridge. In addition to allegations of the federal statutes and the ordinance as above summarized, and of the fact of the transfer of funds from the bridge revenue surplus account, plaintiff alleges that he pays at least $20 annually in tolls for the use of the bridge. He further alleges that Public Law 446, as amended, requires that tolls collected be used only for paying expenses of maintenance and for amortization of the costs of bridge construction, and that the bridge be toll free after those charges upon revenue have been satisfied. Plaintiff's theory of damage to himself and the alleged class is that the transfer of toll revenues to defendant's treasurer will delay the day when the cost of construction will be amortized and plaintiff and plaintiff class might use the bridge toll free.

The factual allegations of Count II are identical to those of Count I as to the physical facts alleged to constitute a controversy. There plaintiff in his own right sues as a holder of one of the revenue bonds. It is alleged that as a direct result of the action of the defendant in transferring funds from the bridge revenue surplus account to defendant's treasurer plaintiff, as a bondholder, has been deprived of a degree of financial protection that otherwise would be his if bridge revenues were applied only for maintenance of the bridge and payment of the revenue bonds. Again it is alleged that the provision of the ordinance which authorizes the transfer of funds to the treasurer of the defendant City is illegal and void, because of a conflict with the provisions of Public Law 446, as amended by Public Law 682, and with the provisions of 33 U.S.C.A. § 529. Finally, Count II alleges that the plaintiff is entitled to have the bridge toll funds applied by the defendant in accordance with the requirements of federal law as plaintiff conceives them to be.

The allegations of Count III are identical to those of Count II, except that plaintiff there sues on his own behalf and on behalf of all other holders of the revenue bonds who are similarly situated.

The prayer of each count is that the court will hold the provision of the bonding ordinance authorizing the transfer of a part of the bridge revenues to defendant's treasurer to be in conflict with federal law, and therefore, void, and that the court will enjoin further transfers of funds and will require the restoration of funds already transferred.

Those allegations impel the conclusion that plaintiff asserts no damage to himself and the class which he represents which differs from damage to the public generally. In Greater Hartford Free Bridge Ass'n v. Greater Hartford Bridge Authority, D.C.D.Conn., 172 F. Supp. 244, affirmed 2 Cir., 265 F.2d 656, it was held that a suit by individual bridge users and an unincorporated association of bridge users to enjoin the collection of tolls on an interstate bridge did not allege a justiciable controversy. I am impressed with the correctness of that decision, and follow it in the disposition of the motion to dismiss Count I of the complaint.

The court, in Greater Hartford, held also that the general bridge statute and the enabling act under which the bridge was built created no individual rights in users of the bridge to redress an alleged violation of the statute. That holding is likewise persuasive. Litigation might never end if the enabling act under which the Centennial Bridge was built must be construed to create in every person who pays a toll for the use of the bridge a right to file suit to redress alleged violation of the statute by the bridge owner. In the absence of express creation of such rights by the statutes, I conclude that no such rights exist. To same effect, Borah v. White County Bridge Comm., 7 Cir., 199 F.2d 213. If the defendant has violated the federal statutes, that violation may be redressed upon complaint by the United States or an appropriate agency thereof. Any detriment to the motoring public would thereby be alleviated.

For the reasons above stated, Count I of the complaint will be dismissed.

The situation with respect to Counts II and III stands on slightly different ground. In Count II, plaintiff, as a bondholder of one of the revenue bonds issued for the reconstruction of the bridge and its approaches, predicates his suit upon a lessening of his security by the transfer of toll funds to the City Treasurer. In Count III, he sues as a bondholder, individually and on behalf of all other holders of revenue bonds, predicating his suit upon the same basis as that of Count II.

The ordinance under which these bonds were issued and sold provides, among other things, that the holders of the bonds shall have a cause of action against the defendant to compel the performance of any duty imposed upon it by the ordinance itself or by Acts of Congress. I think it unquestionable that that provision creates in plaintiff ...

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