either expressed or implied, that a State must pay all or any part of utility relocation costs." H. R. Rep. No. 2022, 84th Cong., 2d Sess., 14 (1956).

In response to the 1956 Highway Act, a number of States passed legislation providing for reimbursement of the cost of relocating utility facilities for federal-aid highway projects."7 The Senate Committee on Public Works expressed concern over "this drastic change in existing practices," noting that "the use of Federal funds for reimbursement to the States for this purpose will increase substantially, thereby reducing the amount of Federal funds available for construction of highways." S. Rep. No. 1407, 85th Cong., 2d Sess., 28 (1958). In response, the Committee proposed to put a 70% cap on federal contributions to States for reimbursement of utilities. Ibid. This limitation was rejected in the final bill, however, and the only amendment to 23 U. S. C. § 123 was a proviso that reimbursement be made "only after evidence satisfactory to the Secretary shall have been presented to him substantiating the fact that the State has paid such cost from its own funds .. Pub. L. 85-381, §11(a), 72 Stat. 94-95. Thus, after careful consideration of the alternatives, the relations between utilities and the States were left, once again, to state law. No federal right to reimbursement was ever granted to utilities, although pro rata federal reimbursement remained available to the States if state law required reimbursement of utilities.

17 "During 1956 and 1957, legislation which would provide for payment by the State of the cost of relocating public-utility facilities was considered by the legislative assemblies in 40 States. Such legislation was passed in 22 States, but was vetoed in 6 States, so it became law in 16 States. Under these 16 State laws only 1 State will pay the cost of relocating utility facilities on all State-maintained highways, 5 relate to all Federal-aid projects, and 10 relate to the projects on the Interstate System only, where the Federal share of the cost is at least 90 percent." S. Rep. No. 1407, 85th Cong., 2d Sess., 28 (1958).

As noted, the 1968 Highway Act did nothing to change this situation. Title 23 U. S. C. § 123 was left untouched. The relocation provisions in §501 through §511 of the 1968 Act were directed at a separate problem: the plight of those displaced from their homes or places of business. H. R. Rep. No. 1584, 90th Cong., 2d Sess., 20 (1968); S. Rep. No. 1340, 90th Cong., 2d Sess., 7 (1968). Utility relocation costs were never mentioned and, given 23 U. S. C. § 123, were clearly not intended to be covered by § 501 through §511.

The history of the Federal-Aid Highway Act from 1954 to 1968 shows, therefore, that Congress considered utility relocation costs and the expenses incurred by "displaced persons" to be separate and distinct problems calling for separate and distinct solutions. Congress showed that it was aware of the common-law rule that utilities must bear their own relocation expenses, and it proved unwilling, after extensive consideration and debate, to federalize the relations between utilities and state and local governments.

In the Relocation Act, Congress chose to deal with only one of these two problems. In modifying and extending § 501 through § 511 of the 1968 Highway Act, Congress was addressing the needs of residential and business tenants and owners, living and working in buildings that would be bulldozed by federal and federally funded programs. 115 Cong. Rec. 31533 (1969) (remarks of Sen. Muskie) (expressing his concern at "the bulldozing of hundreds of thousands of people from their homes and businesses annually"). 18 Section 220 of the Relocation Act repealed those sections of prior law that had been superseded or rendered superfluous by the Relocation Act, including § 501 through § 511 of the 1968 Highway

18 See also S. Rep. No. 91-488, pp. 4, 6, 9 (1969); H. R. Rep. No. 911656, pp. 2–3 (1970); 115 Cong. Rec. 31534 (1969) (remarks of Sen. Mundt); id., at 31534-31535 (remarks of Sen. Tydings); 116 Cong. Rec. 40167 (1970) (remarks of Rep. Edmondson); id., at 40168 (remarks of Rep. Kluczynski); id., at 40170 (remarks of Rep. Mink).

Act. See H. R. Rep. No. 91-1656, pp. 21, 32-38 (1970). Yet 23 U. S. C. § 123, governing utility relocation costs occasioned by federally funded highway projects, was left intact. It was neither contradicted nor rendered superfluous because it addressed a problem outside the scope of the Relocation Act.

19

At no point in the extensive hearings, congressional debates, 20 or Committee Reports 21 was it ever suggested that the Relocation Act would alter the state rules governing utility relocation expenses. Given that Congress had hitherto expressly declined to alter those rules, after extensive consideration and debate, the conclusion seems inescapable that Congress did not do so in a fit of absentmindedness when it modified and extended the provisions of the 1968 Highway Act, provisions directed at a different problem.

Virginia has continuously recognized the common-law rule that a utility forced to relocate from a public right-of-way must do so at its own expense. In Potomac Electric Power Co. v. Fugate, 211 Va. 745, 747-748, 180 S. E. 2d 657, 658-659 (1971), the Supreme Court of Virginia held that a franchise agreement, such as that between Norfolk and C&P, which allows a utility to place its facilities in public streets is revocable at will and confers no property right on the utility. Established practice under the franchise agreement between Norfolk and C&P was to the same effect. C&P has always in the past borne all costs of relocation and has included those

19 See Uniform Relocation Assistance and Land Acquisition Policies Act of 1969: Hearings on S. 1 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 91st Cong., 1st Sess. (1969); Uniform Relocation Assistance and Land Acquisition Policies-1970: Hearings on H. R. 14898, H. R. 14899, S. 1, and related bills before the House Committee on Public Works, 91st Cong., 1st and 2d Sess. (1969-1970).

20 See, e. g., 115 Cong. Rec. 31533-31535 (1969); 116 Cong. Rec. 40163-40172, 42132-42140 (1970).

21 S. Rep. No. 91-488 (1969); H. R. Rep. No. 91-1656 (1970).

expenses as part of its operating expenses within the rate structure approved by the State Corporation Commission. Stipulations of Fact Nos. 10, 11, App. 43-44. We hold that the Relocation Act did not grant utilities such as C&P a new, federal right to reimbursement for expenses of the sort incurred here.

The judgment of the Court of Appeals is

Reversed.

JUSTICE POWELL took no part in the consideration or decision of this case.

Per Curiam

464 U. S.

TORRES-VALENCIA v. UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 82-6848. Decided November 7, 1983

Held: The Court of Appeals' judgment is vacated, and the case is remanded, since both the Government's concession in its brief opposing the petition for certiorari that the District Court erroneously refused to give petitioner's character evidence instruction to the jury and its contention in this Court that the error was harmless should be presented to the Court of Appeals in the first instance.

Certiorari granted; vacated and remanded.

PER CURIAM.

In its brief opposing the petition for certiorari, the Government concedes that the District Court erroneously refused to give petitioner's character evidence instruction to the jury, but argues that the error was harmless. The Government's concession of error, as well as its harmless-error argument, should be presented to the Court of Appeals in the first instance. The motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for consideration of the Government's concession of error.

It is so ordered.

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, dissenting.

This Court can only deal with a certain number of cases on the merits in any given Term, and therefore some judgment must attend the process of selection. Summary disposition is of course appropriate where a lower court has demonstrably misapplied our cases in a manner which has led to an incorrect result. Here, however, the Court chooses to summarily vacate a judgment of the Court of Appeals affirming