This is a declaratory judgment action brought by appellant (plaintiff) State of Idaho on relation of its Board of Highway Directors against respondents (defendants) Idaho Power Company and The Mountain States Telephone and Telegraph Company to determine the constitutionality of certain provisions of I.C. § 40-120 as amended by Idaho Sess.Laws 1957, ch. 227, providing that utilities shall be reimbursed out of the dedicated State Highway Fund for costs of relocating their utility facilities located on any federal-aid primary or secondary system or on the inter-state system of Idaho's public highways, when determined necessary by the Idaho Board of Highway Directors (hereinafter referred to as the Board).
Appellant designated for reconstruction a portion of U. S. Highway 20-26 as reconstruction Project No. F-2351(2) located in the City of Gooding, Gooding County, for inclusion within the federal-aid primary system of highways in this State.
Each respondent is a public utility corporation, organized for profit and qualified to do business in this State. Respondent Idaho Power Company furnishes electrical energy to the public and respondent The Mountain States Telephone and Telegraph Company furnishes telephone and telegraphic communication services to the public. Both are utilities as defined by I.C. § 40-120. The utility facilities of each consist of poles, wires, cables, conduits and similar equipment, constructed, owned and maintained since prior to 1957 in and upon the right-of-way of the portion of the highway included in reconstruction.
The Board, after a hearing duly noticed and as provided by I.C. § 40-120, rendered its decision determining that the contemplated highway reconstruction required relocation of respondents' facilities, and requiring respondents to remove the facilities from the highway right-of-way located in Gooding, and to relocate them in a manner as not to interfere with the reconstruction project. Respondents demanded reimbursement of their costs of relocating the facilities which appellant refused.
Respondents having answered, the parties entered into stipulations framing the issue of the constitutionality of the questioned portions of I.C. § 40-120.
The district court, on hearing the matter, found the facts essentially as herein set forth, and concluded in favor of the validity of I.C. § 40-120 in the particulars under consideration here. The court thereupon entered its judgment adjudging the statute to be valid and constitutional, and that respondents are entitled to recover out of the State Highway Fund their costs incurred in relocating their facilities. Appellant appeals from the judgment.
Appellant's assignments of error present the single issue of law, i. e., the constitutionality of that portion of I.C. § 40-120(27), which provides that appellant pay, out of the State Highway Fund, the cost of relocating the utility facilities.
The relevant portions of I.C. § 40-120, as amended by Idaho Sess.Laws 1957, ch. 227, necessary to be considered, read as follows:
The issue pinpointed is, whether the emphasized portions of I.C. § 40-120 are unconstitutional and therefore invalid.
Appellant, represented by the special assistant attorneys general, contends, First, that the referred to provisions of the statute are in contravention of Idaho Const. Art. 8, § 2, which in part reads:
and Second, that highway user funds cannot be expended for the relocation of utility facilities within the purview of Idaho Const. Art. 7, § 17, which reads:
The present Attorney General in his argument emphasized that he was in agreement
Appellant, in support of its argument that the legislation is in violation of Idaho Const. Art. 8, § 2, (giving or loaning the credit of the state), advances the premise that if the legislature, without constitutional sanction, may change the common law rule that a utility must pay the cost of relocation of its facilities placed upon public thoroughfares, then the legislature may create, retrospectively, a property right in a utility where none existed at the time of the installation of the facilities; and if so, the legislature thereby may decrease the quantum of ownership of the public in the public thoroughfares and give away the property of the public which the state holds in trust.
Appellant's contention that respondents have not and cannot acquire any property rights within the right-of-way of a public thoroughfare requires examination of Idaho Const. Art. 11, § 13, cited by respondents, which reads:
The legislature in providing "reasonable regulations", referred to in the above quoted section of the Constitution, as it relates to the construction and maintenance of telegraph and telephone lines, enacted Revised Statutes, 1887, § 2700, now I.C. § 62-701, which reads:
The legislature in 1903 granted similar rights to electric power companies, Idaho Sess.Laws 1903, § 1, p. 343, amended Laws 1945, ch. 37, § 1, p. 48, now I.C. § 62-705, which reads:
It is to be noted that the legislature specifically limited the use, by telegraph, telephone and electric power companies, of the public roads, streets and
The permissive use of public highways, which the legislature by I.C. §§ 62-701 and 62-705 accords to utilities, is in recognition of the time honored rule existing in this state, that streets and highways belong to the public and are held by the governmental bodies and political subdivisions of the state in trust for use by the public, and that only a permissive right to their use, and no permanent property right, can be gained by those using them. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681; Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173. This Court in Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475, held this rule applicable to a water utility in the placing of its facilities in and upon the public streets of a village.
In the exercise of its powers and duties with respect to the state highway system including streets designated a part thereof, the Department of Highways acts as agent of the state. In discharging a mandatory duty imposed by the state, such department performs a governmental function, I.C. §§ 40-106 and 40-111; Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; Youmans v. Thornton, 31 Idaho 10, 13, 168 P. 1141; within the police power reserved by this state, Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P. 972, L.R.A. 1918F, 1106; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681.
New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 473, 49 L.Ed. 831, construed the nature of the right of the Gaslight Company to the use, for laying its pipelines, of the streets of New Orleans, as permissive only; and therein the Court denied to the utility the right of recovery of the costs of relocation of its facilities since the state in the exercise of its police power could require changes in location thereof when necessary for public use in the interest of the public health, welfare and safety. We quote from that decision:
In Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 139 Pa.Super. 529, 12 A.2d 479, 481, the question was whether the utility was entitled to the cost of relocating its facilities in a public street to make way for highway improvements. Said the Court:
This case recognized the principle that the political subdivision of the state in requiring the change in location of the telephone company's facilities, was, by authority of the legislature, exercising police power in the interest of public safety. Continuing, the Court said:
The state and its political subdivisions are without power to make a valid contract permanently alienating any part of the public streets and highways or permitting a permanent encroachment or obstruction thereon limiting the use of the public thoroughfares by the public. Boise City v. Hon, 14 Idaho 272, 94 P. 167; Boise City v. Wilkinson, 16 Idaho 150, 102 P. 148; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681; Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004; Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173; Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475.
No right to the use of streets and highways for private purposes can be acquired
Permissive use of a street or highway does not vest in the user a property or contractual right, Keyser v. City of Boise, supra; Boise City v. Sinsel, supra.
The power of the state and its political subdivisions to require removal of a nuisance or obstruction, which in anywise interferes with the public use of streets and highways cannot be questioned. Village of Lapwai v. Alligier, supra.
Long before the adoption of our Constitution, the people adopted the common law as the rule of decision in all cases not otherwise provided by law. Such applicability in our system of judicial interpretation remained unchanged upon adoption of our Constitution, July 3, 1890. Idaho Laws, First Session, 1864, Common Law, § 1, p. 527, now I.C. § 73-116; see also Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351.
Under the common law a utility, placing its facilities along streets and highways, gains no property right and upon demand must move its facilities at its expense. New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 139 Pa.Super. 529, 12 A.2d 479; New Jersey Bell Tel. Co. v. Delaware River Joint Commission, 125 N.J. L. 235, 15 A.2d 221; In re Delaware River Joint Commission, 342 Pa. 119, 19 A.2d 278; Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 145 A.2d 172; Transit Commission v. Long Island R. Co., 253 N.Y. 345, 171 N.E. 565; In re Elimination of Highway Railroad Crossing, 259 App.Div. 141, 18 N.Y.S.2d 613, affirmed In re Lehigh Valley R. Co. and Union Road, 283 N.Y. 687, 28 N.E.2d 409; Southern California Gas Co. v. City of Los Angeles, 50 Cal.2d 713, 329 P.2d 289; Anderson v. Stuarts Draft Water Company, 197 Va. 36, 87 S.E.2d 756; Opinion of the Justices, 152 Me. 449, 132 A.2d 440; State v. Southern Bell Telephone and Telegraph Co., Tenn., 319 S.W.2d 90.
Respondents assert that the common law rule may be abrogated by statute and that the legislature abrogated it by enactment of I.C. § 40-120(27) to provide payment of the costs of relocation out of the State Highway Fund.
Respondents assert that the exercise of the police power of appellant Board of Highway Directors, under I.C. § 40-120 (27), to make reasonable regulations for relocation of utility facilities on federal-aid highway projects, is expressly conditioned on the payment of the relocation costs out of the State Highway Fund as part of the costs of acquisition of rights of way, easements and other rights for the construction, improvement and development of the public highways; and that if the referred to provisions of I.C. § 40-120(27) are held to offend the Constitution then the Board's power to order relocations would disappear because the legislature by Idaho Sess.Laws 1957, ch. 227, in addition to § 1 amending I.C. § 40-120 to include subsection (27), enacted § 2 declaring the intention of the legislature to be that the provisions of ch. 227 shall control over and supersede conflicting provisions of existing laws and of law enacted at the 34th (1957) session of the legislature.
Respondents then assert that the common law rule requiring uncompensated relocation under the vastly expanded federal-aid highway system of today, becomes unreasonable; that therefore the real question is whether (quoting respondents) "the Idaho Constitution placed the legislature in a position which would prevent it from changing the law not only in accordance with justice and equity but also for compelling economic reasons."
In our analysis whether the legislature by enactment of I.C. § 40-120(27) effected abrogation of the common law rule, we must apply certain fundamental principles and rules of interpretation. Our starting point is the famous case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, quoting from Chief Justice Marshall:
In response to respondents' argument that the referred to statute is enacted in accordance with equity and justice for compelling economic reasons, we adopt the reasoning of State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007, 1016:
Also we quote from City of Cincinnati v. Harth, 101 Ohio St. 344, 128 N.E. 263, 266, 13 A.L.R. 308:
Flaska v. State, 51 N.M. 13, 177 P.2d 174, 177, contains the following:
And in Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576, 584, 118 A.L.R. 789, the rule is stated:
See also Village of Heyburn v. Security Savings & Trust Co., 55 Idaho 732, 49 P.2d 258, 266; 11 Am.Jur., Constitutional Law, § 50, p. 659.
We are aware of the basic rule that, inasmuch as our Constitution is a limitation and not a grant of power, the legislature has plenary power in all matters except those prohibited by the Constitution. Idaho Const. Art. 1, § 21; Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083; Rich v. Williams, 81 Idaho ___, 341 P.2d 432. Expressions of this rule, as it relates to the power of the legislature to change the common law obligation of utilities to pay the cost of relocation of their facilities, recognize that the legislature is powerless in the premises if there is a constitutional limitation upon the exercise of such power.
And in Boise-Payette Lumber Co. v. Challis Independent School Dist. No. 1, 46 Idaho 403, 268 P. 26, 27, the rule is stated:
See also O'Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672; Dayton Metropolitan Housing Authority v. Evatt, 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; In re Opinion of the Justices, 324 Mass. 746, 85 N.E.2d 761; Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609, 141 A.L.R. 1136; 11 Am.Jur., Constitutional Law, § 139, p. 813.
State Highway Commission v. Southern Union Gas Co., supra [65 N.M. 84, 332 P.2d 1015], answers the assertion of respondents and the present Attorney General that the relocation costs should be paid "at the gasoline pumps" by those who use the highways, rather than by the users of communication and electric power through rates charged for those services; said the New Mexico Supreme Court:
Respondents contend it is immaterial that the utility facilities are owned by private companies and not by the state, since the utilities are devoted to public use, and thereby the public interest is served; they point to Idaho Const., Art. 11, § 13, and I.C. §§ 62-701 and 62-705 as "expressly permitting public utility corporations to use the public highways for their facilities," as indicative of public use.
We have pointed out that the referred to section of the Constitution recognizes only the right of telephone and telegraph companies to construct and maintain their lines within this state and to connect them with other lines; and that the legislature, in the "reasonable regulations" contained in said sections of the statute, has not seen fit to grant to any telephone, telegraph or electric power utility any permanent or vested property right in any public right-of-way; on the contrary, the legislature allows permissive use only of the public thoroughfares by utilities for their facilities, and in such manner so as not to incommode the public use of the road, highway or street.
Clearly, the legislature at all times has recognized, and continues to recognize that all roads, streets and highways are held in trust by the state and its political subdivisions for use by the public; also, that the granting by the state or political subdivision of a vested or permanent property right or interest in any public street or highway would not only be violative of such public trust, but would result in diminution of the quantum of ownership of the public in its public thoroughfares; and that so to do would constitute the giving or loaning of the credit of the state to or in aid of an individual, municipality or corporation, violative of Idaho Const. Art. 8, § 2, or a gift of the public property in violation of the implied limitations of the Constitution.
Dayton Metropolitan Housing Authority v. Evatt, 143 Ohio St. 10, 53 N.E.2d 896, 901, 152 A.L.R. 223, contains an exhaustive digest of authorities on the various phases of what constitutes "public use" and, quoting from In re Opinion of the Justices, 211 Mass. 624, 98 N.E. 611, 42 L.R.A.,N.S., 221, the Ohio Court stated:
The ruling of this opinion is summarized in the Court's syllabus as follows:
See also 73 C.J.S. Public, subhead Public use, p. 279 et seq.
And the Court discussed the theory of gratuitous transfer of public property in language as follows:
In Fluharty v. Board of Com'rs, 29 Idaho 203, 158 P. 320, 321, this Court held invalid Rev.Code, § 3040. This enactment provided that the board of county commissioners of any county, in which there is a fair association or corporation having for its object the exhibition of livestock and other agricultural products of a county or of the state, may appropriate annually out of the county treasury a sum not exceeding one-half of 1 mill on every dollar of taxable property in the county to assist in defraying the expenses of the fair. The plaintiff attacked the enactment as violative of Idaho Const. Art. 12, § 4. This section of the Constitution in express terms prohibits a county, through its board of county commissioners or by vote of its citizens or otherwise, from making donations to or in aid of any company, corporation or association. The fair association admittedly was organized as a nonprofit association for the purpose of stimulating, developing and promoting the agricultural and livestock interests of the Northwest. This Court in holding the county appropriation to the fair association to be in violation of the Constitution, Art. 12, § 4, even though it was urged that the "main and chief purpose of such an appropriation was for the promotion of the public interest and welfare," stated:
and in conclusion the Court commented:
See also Atkinson v. Board of Com'rs, 18 Idaho 282, 108 P. 1046, 28 L.R.A.,N.S., 412; School Dist. No. 8 in Twin Falls County v. Twin Falls County Mut. Fire Ins. Co., 30 Idaho 400, 164 P. 1174; Harrington v. Atteberry, 21 N.M. 50, 153 P. 1041; Boise-Payette Lumber Co. v. Challis Independent School Dist. No. 1, 46 Idaho 403, 268 P. 26. As was said in Mulkey v. Quillian, 213 Ga. 507, 100 S.E.2d 268, 271:
In re Opinion of the Justices, 324 Mass. 746, 85 N.E.2d 761, 763, construed the constitutionality of a bill intended to provide that subways, tunnels, viaducts, elevated structures and rapid transit extensions constructed by Metropolitan Transit Authority to relieve traffic on the surface of the public thoroughfares, be declared public highways and bridges, and that payment for such structures be provided to be made out of Massachusetts' constitutionally dedicated highway user funds (Mass.Const., Amend. Art. 78). The Massachusetts Supreme Court in ruling the proposed bill unconstitutional stated:
In City of Cincinnati v. Harth, 101 Ohio St. 344, 128 N.E. 263, 264, 13 A.L.R. 308, the Ohio Court forbade payment by a municipality of relocation costs of a utility as violative of a constitutional provision forbidding the loaning of the municipality's money and credit to a corporation; the Court pointed out that the new construction and new property contemplated to be paid for, as costs of relocation of the facilities by the municipality, nevertheless would constitute property belonging to the utility to be used and dealt with by it in every way as it might deal with and use all its other properties, which would constitute loaning the municipality's money to the credit of the utility in violation of the constitutional provision. The Court, quoting from Alter v. City of Cincinnati, 56 Ohio St. 47, 46 N.E. 69, 35 L.R.A. 737, said:
and continuing the Ohio Court made this significant statement:
Several states, including Idaho, have adopted legislation following the enactment, by the Congress of the United States, of the Federal-Aid Highway Act of 1956, 23 U.S.C.A. § 151 et seq.,
In Opinion of the Justices, 101 N.H. 527, 132 A.2d 613, 614, the constitutional question of the state giving or loaning its credit or donating its money or property does not appear to have been involved. The principal question was whether the relocation costs could be paid from the constitutionally dedicated highway fund (N.H. Const., Part II, art. 6-a). The New Hampshire court observed:
and thereupon ruled:
In Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, 653, the Supreme Court of Minnesota held that although all "gratuities and benevolences of public moneys in aid of private undertakings are prohibited" by Minn.Const., Art. 9, §§ 1 and 10, nevertheless the state constitution "does not prohibit the legislature from, by prospective action * * * fixing the conditions of performance and making provisions for the future recognition of claims for damages founded on equity and justice, although such claims would otherwise be damnum absque injuria and unenforceable against the state." The Minnesota Court further observed, "Minnesota has been definitely committed to the view that the use of rights-of-way by utilities * * * is one of the proper and primary purposes for which highways are designed."
Idaho is not committed to either of the aforementioned policies of Minnesota. As to the first policy, Idaho Const. Art. 1, § 14, provides that compensation shall be paid for private property "taken for public use," and I.C. § 7-711 provides for damages, after the taking, to the remaining portion of the property from which the condemned portion is taken; and thus damages without taking constitute damnum absque injuria and are unenforceable against the state. Idaho-Western R. Co. v. Columbia, etc., Synod, 20 Idaho 568, 119 P. 60, 38 L.R.A.,N.S., 497; Hughes v. State, 80 Idaho 286, 328 P.2d 397. Nor has Idaho ever been committed to the theory of Minnesota's second policy mentioned, simply because in view of Idaho Const. Art. 11, § 13, and I.C. §§ 62-701 and 62-705, and the decisions of this state hereinbefore
The Supreme Judicial Court of Maine in Opinion of the Justices, 152 Me. 449, 132 A.2d 440, 443, held that any expenditure of Maine's highway user funds for costs of relocation of utility facilities would be violative of Maine's Constitution, Art. IX, § 19, similar to and identical in import to Idaho Const. Art. 7, § 17, relating to the use of Idaho's highway user funds. The Court in so ruling, stated:
In State v. Southern Bell Telephone and Telegraph Co., Tenn., 319 S.W.2d 90, 92, legislation was attacked as violative of Tenn.Const. Art. 2, Sec. 31, prohibiting the loaning of the state's credit to, and in aid of persons, corporations and municipalities. The Tennessee Supreme Court, in holding that such constitutional provision authorized the use of state credit only to serve a state purpose and that reimbursement of a utility for relocation costs of its facilities could not be so classified, stated:
and Justices Swepston and Burnett, concurring with the majority opinion holding that costs of relocating utility facilities failed to serve a public purpose, stated:
In State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007, 1013, legislation attempting to authorize state reimbursement of costs of relocating utility facilities, was attacked on the ground that it was violative of N.M. Const. Art. 9, Sec. 24, prohibiting donations of state funds in aid of a private corporation. The Supreme Court of New Mexico in holding the legislation to be unconstitutional, stated:
See also 18 Am.Jur., Electricity, § 18, p. 421; 52 Am.Jur., Telephone and Telegraph, § 34, p. 64; 86 C.J.S. Tel. & Tel., Radio and Television § 37, p. 51; Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308; Southern Bell Tel. & Tel. Co. v. State, Fla., 75 So.2d 796; Consolidated Edison Co. of New York v. State, 276 App. Div. 677, 97 N.Y.S.2d 431, affirmed 302 N.Y. 711, 98 N.E.2d 587.
Respondents urge decisions from several jurisdictions in support of their contention that state reimbursement of costs of relocation of utility facilities are expenditures for a public purpose, authorized by I.C. § 40-120. We have considered all those cases. In those of our own jurisdiction, i. e., State ex rel. Nielson v. Lindstrom, 68 Idaho 226, 191 P.2d 1009; Newland v. Child, 73 Idaho 530, 254 P.2d 1066, and Davis v. Moon, 77 Idaho 146, 289 P.2d 614, certain laws were attacked as violative of Idaho Const. Art. 8, § 2; those cases are readily distinguishable from the one at bar, since therein this Court recognized expenditures of public moneys to be for recognized governmental functions of public welfare, and acquisition of public property for educational purposes.
In the Lindstrom case, this Court based its ruling in favor of the constitutionality of the old-age assistance act (Idaho Sess. Laws 1941, ch. 181, § 1(m), and 1947, ch. 237), upon the well recognized precept that "the granting of aid to its needy and aged is a well recognized obligation of the state and is a governmental function, tending to promote the public welfare." [68 Idaho 226, 191 P.2d 1012.]
In Newland v. Child, supra, a proceeding attacking certain provisions of the public assistance act (I.C., §§ 56-210 and 56-224a), this Court in holding that the act was not in violation of Idaho Const. Art. 8, § 2, adopted the reasoning of the Lindstrom case.
Davis v. Moon, supra [77 Idaho 146, 289 P.2d 618], attacked an act appropriating moneys to pay principal and interest on dormitory bonds. This Court held that the act, because of its public purpose, was not violative of Idaho Const. Art. 8, § 2; that
The nature of the expenditures in reimbursement of the utility relocation costs, as attempted to be authorized by I.C. § 40-120, does not meet the tests required by our Constitution and decisions, to remove such payments from the constitutional prohibition of giving or loaning the credit of the state in aid of a private association or corporation, or from the implied constitutional limitation against donation of public property for private purposes.
It cannot be gainsaid that if the state or any political subdivision furnished for public consumption the utility services of respondents, such would constitute a proprietory function, and not a necessary governmental function. Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541, 118 Am. St.Rep. 225.
The fact that respondents' activities, in furnishing services to the public, are public in nature and may be devoted to public use is insufficient to remove payment of the relocation costs from the constitutional prohibitions. The state has not acquired and cannot acquire the property of any privately owned utility, as are respondents, or any interest therein; nor any control over respondents or their officers, except in certain limited aspects through the public utilities commission; nor does the state direct the acquisition and disposition of properties, or control the financial transactions of privately owned utilities; nor is the property owned by such utilities, public property exempt from taxation as provided by Idaho Const. Art. 7, § 4; and whereas, such utilities may, and do, use their moneys and properties for profit, the state and its political subdivisions are prohibited from making a profit directly or indirectly by the use of public moneys. Idaho Const. Art. 7, § 10. Nor is any grant authorized in favor of any utility, of a vested or permanent interest in any public thoroughfare, the right to the use being permissive and as not to incommode the public use thereof.
Moreover, there is no taking of private property for public use in causing relocation of the utilities' facilities in anywise violative of the eminent domain provisions of Idaho Const. Art. 1, § 14, the injury sustained, if any, being damnum absque injuria, since "uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation." New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 474, 49 L.Ed. 831, 835; Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721; State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007; Idaho Const. Art. 1, § 14; I.C. §§ 7-711, 62-701 and 62-705. This is but a recognition of the fundamental proposition that respondents' permissive use of the public thoroughfares is subordinate to the paramount use thereof by the public.
We therefore hold that I.C. § 40-120(27) providing that costs of relocation of utility facilities shall be a part of the acquisition of rights-of-way, easements and other rights for and the construction, maintenance, repair, improvement and development of the public highways in the highway system included in any project on the federal-aid primary or secondary systems or on the interstate system, to be paid by the State of Idaho out of the dedicated State Highway Fund, is violative of Idaho Const. Art. 8, § 2, and Art. 7, § 17, and therefore unconstitutional and void.
In so ruling, we also answer respondents' assertion that, if the referred to provision of I.C. § 40-120(27), [Idaho Sess. Laws 1957, ch. 227, § 1(27)], be held to offend the Constitution, then the power of the Idaho Board of Highway Directors to order relocation would disappear, because the legislature, by Idaho Sess.Laws 1957,
The judgment of the district court is reversed, and the cause remanded with instructions to enter judgment, consonant with the views herein expressed, for plaintiff-appellant as prayed for in its complaint.
Costs to appellant.
BELLWOOD, CRAMER and MARTIN, District Judges, concur.
PORTER, C. J., and TAYLOR and McQUADE, JJ., not participating.
KNUDSON, Justice (dissenting).
With due deference to the majority opinion I cannot agree with the conclusions therein reached. The difference in our opinions stems from our respective views concerning the status of respondents' transportation facilities upon the highway right of way prior to removal as directed by appellant. The majority opinion holds that a utility as mentioned in I.C. §§ 62-701 and 62-705, by the construction and maintenance of their respective transportation facilities upon a highway acquires no property right and that such use is merely permissive. I feel that such view is contra to the great weight of judicial authority including decisions of the Supreme Court of the United States.
The principal constitutional and statutory provisions involved are quoted in the majority opinion which obviates the necessity of quoting them at length herein.
In order to appraise the rights, if any, which are acquired by a public utility, such as these respondents, as a result of constructing, maintaining and operating their facilities upon the public highways of this state we must consider the constitutional and statutory provisions which relate to and confer whatever rights exist. Art. 11, Sec. 13, of the Idaho Constitution provides in substance that any individual, association or corporation, properly organized, shall have the right to construct and maintain telegraph and telephone lines within this state, and that the legislature by general law shall provide reasonable regulations to give full effect to this constitutional provision. Said section clearly emphasizes that the right to construct and maintain telegraph and telephone lines within this state under reasonable regulations is to be assured. Under its terms the legislature is in effect directed to provide proper and reasonable regulations to encourage such construction and maintenance. Pursuant to such directive the legislature at its earliest opportunity enacted I.C. § 62-701 which grants to telephone and telegraph corporations the right to use the highways of this state for the construction of their lines. A few years later, in 1903, the legislature, no doubt anticipating the important part that electrical energy would play in the lives of future generations and having in mind the growth and development of this state, granted substantially the same rights to electric power companies by the enactment of I.C. § 62-705.
The constitutionality of said enactments (I.C. §§ 62-701 and 62-705) is not questioned and we are here only concerned
In the case of Los Angeles County v. Southern California Tel. Co., 32 Cal.2d 378, 196 P.2d 773, 777, the Supreme Court of California while further discussing such statute said:
One of the early decisions in which the right of a public utility to maintain its facilities in a public street is discussed is the case of Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U.S. 84, 33 S.Ct. 997, 1000, 57 L.Ed. 1400 wherein the city had the express power under its legislative charter to grant the right to lay water pipes upon and along its streets for the purpose of distributing water. It was contended that the grant, by ordinance of the city, to lay water pipes upon the streets of the city was nothing more than a revocable license, the Supreme Court of the United States said:
In the case of Russell v. Sebastian, 233 U.S. 195, 34 S.Ct. 517, 520, 58 L.Ed. 912, the Supreme Court of the United States in discussing the rights acquired under a legislative provision such as I.C. § 62-701 stated:
In City of Owensboro v. Cumberland Telephone & Telegraph Company, 230 U.S. 58, 65, 33 S.Ct. 988, 990, 57 L.Ed. 1389, the United States Supreme Court had under consideration an ordinance granting to a telephone company the right to place and maintain poles and wires upon the streets of a city and in discussing the right involved said:
The Supreme Court of Washington in City of Seattle v. Western Union Telegraph Co., 21 Wn.2d 838, 153 P.2d 859, 867, had under consideration a statute very comparable to I.C. § 62-701 and said:
Among the courts of other jurisdictions which have held that the statutory offer of a franchise when accepted by a public utility by the construction, maintenance and operation of its facilities results in a valid contract secured by the Federal Constitution against impairment are:
Further considering the nature of such rights it may be noted that in City of Owensboro v. Cumberland Telephone & Telegraph Company, supra, the court said that "as a property right it was assignable, taxable, and alienable". [230 U.S. 58, 33 S.Ct. 990.] In Western Union Telegraph Co. v. Hopkins, 160 Cal. 106, 116 P. 557, 563, the Supreme Court of California had under consideration a statute identical to I.C. § 62-701 and by unanimous opinion decided that the right acquired by a telegraph company by the occupation of a highway pursuant to the offer contained in such statute acquired a property right which was subject to taxation the same as other valuable property within the state and in discussing the question involved said:
In Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681, the Court held that plaintiff could not acquire absolute right to occupy a portion of a street for taxi use. Here again we have no authorization by statute permitting such use. In Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173, it was held that the building permit involved resulted only in a permissive use by the holder. We have no statute authorizing such a use of streets or highways. In Village of Lapwai v. Alligier, 78 Idaho 124, 229 P.2d 475, the Court had under consideration a franchise, granted by an ordinance of the respondent village, which by its terms expired prior to the commencement of the action and was never renewed. In the case under consideration we do have and are concerned with, statutes authorizing and permitting the construction of utility lines within the highways.
It is my view that I.C. §§ 62-701 and 62-705 do confer property rights to utility companies specified therein when such utility has accepted the offer by the construction and maintenance of their lines upon the right of way. These statutes have been the law of this state for more than fifty years. No doubt public utilities which have made installations pursuant to them have long relied upon the construction placed upon them to the effect that they have some right upon the highway. Such utility systems cannot be operated without the use of poles, conduits, wires and fixtures. These structures are permanent in their nature and require a large investment for their erection and construction. What utility would locate its facilities upon a street or highway with the understanding or knowledge that at the next meeting or change of the city council, board of county commissioners, or legislature it may be compelled without just cause or compensation, to remove its facilities.
It is conceded that at common law these utilities could be required to relocate their facilities at their own expense. It must also be acknowledged that the legislature has the right to enact legislation which departs from and renders inapplicable the common law rule, if such legislation is not in violation of the constitution. The majority opinion infers that the legislature's right to abrogate the common law rule must be otherwise "circumscribed" and cites a New York case wherein it is held that the common law obligation of the utility to relocate its own structures continues until the constitution and statute expressly provide otherwise. I know of no precedent in this state which will support the view expressed in said New York case. This Court has repeatedly held that our state constitution is a limitation and not a grant of power and that the legislature has plenary power in all matters except those prohibited by the constitution. In Davis v. Moon, 77 Idaho 146, 289 P.2d 614, 617, this Court said: "The legislature has unlimited power to legislate where legislation
There is not one word in the constitution of this state that in any manner restrains or prohibits legislation relative to the use of highways by public utilities. To the contrary, Sec. 13, Art. 11 of our Constitution is a clear mandate to the legislature to provide regulations so as to give full effect to the right to construct and maintain transmission facilities in this state. It is my view that by enactment of Ch. 227 of the Idaho Session Laws of 1957 the legislature rendered inapplicable such common law rule as concerns the issues here involved.
Considering that Sec. 13, Art. 11 of our Constitution provides that the utilities referred to therein "shall have the right" to construct and maintain lines within this state and that "the legislature shall * * * provide reasonable regulations to give full effect to this section", and considering also that I.C. §§ 62-701 and 62-705 have been upon the statute books since early statehood it is clear that the framers of the constitution and the legislature have conclusively established that to encourage the construction and maintenance of such utility lines upon highway rights-of-way is a firm public policy of the state.
Whatever may be the view of others it is clear to this writer that these constitutional and statutory provisions do not support a contention that the sole purpose of highway rights-of-way in this state is limited to travel and the transportation of persons and property in movable vehicles. They are, in my judgment, designed and intended as avenues of communication, travel and transportation and that the installation and maintenance upon them of public utility facilities for transmission of intelligence, communications and electrical energy is certainly a proper, if not a primary purpose, for which they are designed.
The utilities herein concerned are regulated under the police power of the state; they are engaged in the business of furnishing communication and electric power to the public at just, reasonable and controlled rates; they are under a legal duty to serve the public; their business is affected with a public interest and confers important and direct benefits upon the public; the use of highway rights-of-way for the location of their transmission facilities promotes the extension of such service to the greatest number of people at a cost less than would otherwise be expected.
The cases most heavily relied upon by appellant and in the majority opinion are State Highway Commission v. Southern Union Gas Company, 65 N.M. 84, 332 P.2d 1007, and State v. Southern Bell Telephone & Telegraph Co., Tenn., 319 S.W.2d 90.
Each of these cases holds that a statute authorizing reimbursement to a public utility of replacement cost is repugnant to a constitutional prohibition that a state shall not lend or pledge its credit. Upon examination of said decisions it will be found that no reference or mention is made in the decision of either court, to any constitutional provision comparable to Art. 11, Sec. 13 of our Constitution or to any statutory provision comparable to I.C. §§ 62-701 or 62-705. I therefore assume that neither court had either of such provisions to deal with in arriving at its decision and did not consider any comparable provisions.
The New Mexico court does not recognize that a public interest or public purpose is any criterion by which the validity of an
In the case of Davis v. Moon, 77 Idaho 146, 289 P.2d 614, 618, this Court said:
It is undebatable that the establishment, maintenance and control of public roads and highways in this state is a public purpose embraced and included within the police powers of the state. By reason of the foregoing mentioned distinguishing features I do not feel that the decisions in the Tennessee and New Mexico cases hereinbefore referred to are in point.
One of the constitutional questions here before us has been considered in many other jurisdictions having comparable constitutional restrictions against lending aid and credit to individuals, etc. Among them is the Supreme Court of New Hampshire and in an advisory opinion wherein that court had under consideration a statute similar to chapter 227 here involved, that Court said:
One of the leading cases wherein a statute identical in legal effect to chapter 227 here involved is the case of Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, 651, and in construing the state's constitutional prohibitions against the state lending aid or credit to individuals the court said:
The Supreme Court of the state of Maine in passing upon similar legislative and constitutional provisions in Opinion of the Justices, 152 Me. 449, 132 A.2d 440, 443, had this to say:
One of the recent cases considering a like question is Wilson v. City of Long Branch, 27 N.J. 360, 142 A.2d 837, 847, wherein the Supreme Court of New Jersey upheld the constitutionality of a legislative act authorizing the payment of the expense of a utility relocation necessitated by an urban redevelopment plan and said:
In State v. City of Dallas, Tex.Civ.App., 319 S.W.2d 767, 775 the court in considering the right of the state to reimburse a utility described the rights of a utility acquired by the construction and maintenance of its facilities in and upon the public ways as "valuable property rights" which are "protected by constitutional guarantees" and while discussing a statutory provision comparable to chapter 227 the court said:
To aid in determining whether or not an act is for a public purpose I deem it proper to consider that which gave rise to its enactment. The congress of the United States has enacted legislation looking to the building of super interstate highways wherein provision has been made for participation by the states in the building of a vast system of public roads. Among other things such legislation provides that the costs of relocation of public utility facilities, such as are here involved, would on such Federal Aid projects be shared by the Federal Government and the state on a percentage basis. The utility company involved would be reimbursed the actual cost attributable to such relocation after deducting any increase in the value of the new facility and any salvage value derived from the old facility. The reimbursement is confined to non-betterment cost and merely restores the utility to the same position it was prior to the relocation, it gains absolutely nothing.
It is common knowledge that many of our highways are clogged with vehicular traffic. The building of super highways has become a matter of public necessity due to the inadequacy of our present highways. The legislature of this state has seen fit to participate with the Federal Government in building a system of interstate highways and by the enactment of chapter 227 has authorized and directed the state's cooperation in the Federal Aid highway program. The result is that by virtue
There are well reasoned cases wherein the constitutionality of such legislation as chapter 227 is upheld on the theory that justice and equity require the reimbursement therein provided for. A leading case is Oswego & S. R. Co. v. State, 226 N.Y. 351, 124 N.E. 8, 10 wherein the writer of the opinion Justice Cardozo included the following:
The recognition of an equitable and moral obligation as justifying the disbursement of public monies for a public purpose has been considered by this Court and it held that when the legislature has properly authorized and directed the disbursement of public money to meet a moral obligation, connected with a public purpose, it does not violate the constitutional provision here considered. In the case of Newland v. Child, supra [73 Idaho 530, 254 P.2d 1070], this Court said:
Again in the case of Davis v. Moon, supra [77 Idaho 146, 289 P.2d 618], where it was contended that an appropriation of state monies to pay both principle and interest on college dormitory bonds was unconstitutional this Court said:
I cannot agree with the conclusion reached in the majority opinion that said chapter 227 violates Art. 7, Sec. 17 of our constitution. It is my view that the word "construction" as used in said section of our constitution embraces everything connected with and necessarily incident to the complete accomplishment of construction. As was observed by the trial court in this case "it is common knowledge that the highway department frequently relocates farm fences, irrigation works and driveways when it widens and relocates a highway, and the expense of doing so is an incident to and properly considered a cost of construction." Among the many decisions supporting such a view is the case of Minneapolis Gas Co. v. Zimmerman, supra [253 Minn. 164, 91 N.W.2d 649], wherein the Minnesota court said:
To the same effect is the decision of the Supreme Court of New Hampshire (see Opinion of the Justices, 101 N.H. 527, 132 A.2d 613, 616) construing a constitutional provision which is almost the exact counterpart of Sec. 17 here considered, and the Court held that:
In the case of Department of Highways v. Pennsylvania Public Utility Commission, 185 Pa.Super. 1, 136 A.2d 473, 483, the Court said:
In the majority opinion it is stated in substance that the legislature specifically limited the utilities' use of the public roads, streets and highways by the language "as not to incommode the public use of the road or highway" which is contained in §§ 62-701 and 62-705. With such interpretation I do not agree. The plain language used in said § 62-701 refers solely to construction of lines and erection of poles, etc. It is the original construction of lines and erection of poles, etc. which is directed to be done in such manner and at such points so as not to incommode the public use of the road or highway. There is not one word in said section which needs construction, and as this Court has repeatedly said it is a primary canon of statutory construction that where the language of a statute is unambiguous, the clear expressed intent of the legislature must be given effect and there is no occasion of construction. Surely we are justified in assuming that if the legislature intended any limitation other than is plainly stated it would have found and used words to express such intention.
Nor can I agree with the view expressed in the majority opinion that if by the acceptance of the offer contained in said I.C. §§ 62-701 and 62-705 a property right became vested in the acceptor it would constitute a violation of the Idaho Constitution, Art. 8, Sec. 2, by giving or loaning the credit of the state. I know of no constitutional provision which prevents the granting, in the manner provided by law, of any easement, interest or title in or to lands owned by the state. In fact highway rights-of-way, or portions thereof, are frequently conveyed, exchanged, abolished, abandoned or otherwise dealt with pursuant to authority conferred by statute.
In support of the contention that a right is acquired by a utility when it constructs its transportation facilities upon a highway pursuant to said §§ 62-701 and 62-705, attention is called to the fact that each of said statutes specifically provides that a right is involved. The first words used in § 62-701 are "Right to use highways" and in § 62-705 it is specifically provided that the utility "shall have and is hereby given the right to erect, construct, maintain and operate * * *". Without attempting to define such right, suffice to say that it is the opinion of this writer that by the construction and operation of transportation facilities upon the highway such utility acquired a right to remain there subject to reasonable exercise of the police power of
In this case the legislature has concluded that just compensation is the amount of relocation costs. It is my opinion that I.C. § 40-120, as amended by the Idaho Sess. Laws of 1957, Ch. 227 does not offend any provision of our Constitution, and that the judgment of the district court should be sustained.
On Denial of Petition for Rehearing.
Respondents in their petition for rehearing again assert their acquisition of a property right or interest in the public thoroughfares by virtue of the placing thereon of their facilities, again urging Idaho Const., Art. 11, § 13; I.C. §§ 62-701 and 62-705 and various authorities.
While the right so to place utility facilities and use the public thoroughfares has the attributes of property, Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U.S. 84, 33 S.Ct. 997, 57 L.Ed. 1400, such is not, and cannot ripen into, a permanent vested property right in fee, as we held in our original opinion and continue so to hold. This is true simply because, in summary:
First, Idaho Const., Art. 11, § 13, recognizes only the right of telephone and telegraph companies to construct and maintain their lines within this state and connect the same with other lines, leaving it to the legislature to provide the "reasonable regulations" therefor; and the legislature, by I.C. § 62-701 relating to telephone and telegraph companies, and I.C. § 62-705 to electric power companies, enacted the "reasonable regulations"; thereby the legislature granted to those utilities the right to the use of the public thoroughfares for placement of their facilities thereon, — but nevertheless defeasible, — in such manner and at such points or places as not to incommode the public use of such thoroughfares, thereby recognizing that the sovereign and its political subdivisions hold the public thoroughfares in trust for use by the general public.
Second, inasmuch as the sovereign in the exercise of its police power, where convenience and necessity of the paramount public use so require, may cause removal of the facilities at the expense of the utility companies, since their right to the use of the public thoroughfares, as to the manner and points or places of location thereon of their facilities, is subordinate and defeasible, there is no taking of property of the utilities without due process in violation of either the Constitution of the United States or of the State of Idaho, U.S. Const. Amend. 14; Idaho Const. art. 1, § 13.
The petition for rehearing is denied.
BELLWOOD, CRAMER and MARTIN, District Judges., concur.
KNUDSON, J., dissents.