V. L. (PAT) JONES, PLAINTIFF AND APPELLANT, v. HARRY L. BURNS, L. V. SWANSON, OTIS S. WATERS, S. N. HALVORSON, AND ROY L. SORRELS, AS MEMBERS OF AND CONSTITUTING THE MONTANA STATE HIGHWAY COMMISSION, DEFENDANTS AND RESPONDENTS.
No. 10086
SUPREME COURT OF MONTANA
Submitted June 15, 1960. Decided November 16, 1960.
357 P.2d 22
THE MONTANA POWER COMPANY, A CORPORATION; MONTANA-DAKOTA UTILITIES COMPANY, A CORPORATION; PACIFIC POWER AND LIGHT COMPANY, A CORPORATION; AND THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, A CORPORATION, THREE RIVERS RURAL TELEPHONE CO-OP; MID-RIVERS TELEPHONE ASSOCIATION; NORTHERN TELEPHONE ASSOCIATION; TRIANGLE TELEPHONE ASSOCIATION; NEMONT TELEPHONE ASSOCIATION; VALLEY TELEPHONE CO-OP; AND BLACKFOOT TELEPHONE CO-OP, EACH A CORPORATION, RAVALLI COUNTY ELECTRIC CO-OPERATIVE, INC.; SUN RIVER ELECTRIC CO-OPERATIVE, INC.; LOWER YELLOWSTONE RURAL ELECTRIC ASSOCIATION, INC.; VIGILANTE ELECTRIC CO-OPERATIVE, INC.; MISSOULA ELECTRIC CO-OPERATIVE, INC.; FLATHEAD ELECTRIC CO-OPERATIVE, INC.; FERGUS ELECTRIC CO-OPERATIVE, INC.; PARK ELECTRIC CO-OPERATIVE, INC.; MID-YELLOWSTONE ELECTRIC CO-OPERATIVE, INC.; BEARTOOTH ELECTRIC CO-OPERATIVE, INC.; BIG HORN COUNTY ELECTRIC CO-OPERATIVE, INC.; BIG FLAT ELECTRIC CO-OPERATIVE, INC.; SHERIDAN COUNTY ELECTRIC CO-OPERATIVE, INC.; NORTHERN ELECTRIC CO-OPERATIVE, INC.; VALLEY COUNTY ELECTRIC CO-OPERATIVE, INC.; McCONE COUNTY ELECTRIC CO-OPERATIVE, INC.; GOLDENWEST ELECTRIC CO-OPERATIVE, INC.; MARIAS RIVER ELECTRIC CO-OPERATIVE, INC.; HILL COUNTY ELECTRIC CO-OPERATIVE, INC.; TONGUE RIVER ELECTRIC CO-OPERATIVE, INC.; SOUTHEAST ELECTRIC CO-OPERATIVE, INC.; AND LINCOLN ELECTRIC CO-OPERATIVE, INC., INTERVENORS AND RESPONDENTS.
Forrest H. Anderson, Atty. Gen., and Paul T. Keller, Clayton R. Herron, Donald Douglas, Mark P. Sullivan, Philip Strope and David Dean, Sp. Asst. Attys. Gen., for defendants and respondents.
Weir, Gough & Booth, Helena, William H. Coldiron and Sam B. Chase, Jr., Butte, for intervenor Montana Power Co.
Murphy, Robinson & Keller, Kalispell, Coleman, Lamey & Crowley, Billings, for intervenors Pacific Power & Light and Montana-Dakota Utilities Co.
Toomey & Hughes, Helena, Akolt, Turnquist, Shepherd, Dick & Rovira, Denver, for intervenor Mt. States Tel. & Tel. Co.
Graybill, Bradford & Graybill and P. J. Gilfeather, Great Falls, for intervenors Telephone and Electric Co-ops.
MR. CHIEF JUSTICE HARRISON delivered the Opinion of the Court.
Following the filing of the complaint, applications were made for leave to intervene by various utility companies. Such applications were filed by one privately owned power and light corporation, two privately owned electric and gas corporations and one privately owned telephone and telegraph corporation. The operations of these utilities are practically state-wide. Seven cooperatively owned telephone companies with headquarters at Fairfield, Circle, Shelby, Havre, Scobey, Glasgow and Missoula likewise applied for leave to intervene. Twenty-three cooperatively owned electric companies with headquarters at Corvallis, Fairfield, Sidney, Huntley, Dillon, Missoula, Kalispell, Lewistown, Livingston, Hysham, Red Lodge, Lodge Grass, Malta, Medicine Lake, Opheim, Glasgow, Circle, Wibaux, Shelby, Havre, Ashland, Ekalaka and Eureka, also petitioned for leave to intervene. All requests for leave to intervene were granted and the respondents in this cause were the Montana Highway Commission, four privately owned and thirty cooperatively owned public utility companies.
Plaintiff‘s specifications of error present the single issue of law, to-wit; the constitutionality of section 32-1625. He contends that the district court erred in holding that section to be constitutional and declares that it violates
Section 32-1625, R.C.M. 1947, enacted as Chapter 254, Session Laws of Montana, 1957, provides:
“(a) The state highway commission shall have the power and authority to make and publish after appropriate hearings reasonable regulations for the installation, construction, maintenance, repair, renewal and relocation of tracks, pipes, mains, conduits, cables, wires, towers, poles and other equipment and appliances (herein called ‘facilities‘) of any utility in, on, along, over, across, through or under any project on (1) the Federal-Aid Primary System, or (2) the Federal-Aid Secondary System, or on (3) the Interstate System, including extensions thereof within urban areas. Whenever the commission shall determine, after written notice supplied to all concerned not less than twenty (20) days in advance of hearing and fair, public hearing at the time and place noticed for hearing (unless hearing is waived by the utility or other interested parties in writing), that it is necessary that any such facilities which now are, or hereafter may be, located in, on, along, over, across, through or under any such Federal-Aid Primary System, Federal-Aid Secondary System, or on the Interstate System, including extensions thereof within urban areas, should be relocated, the utility owning or operating such facilities shall relocate the same in accordance with the valid order of the commission, and seventy-five per cent (75%) of all costs of relocation, including acquisition of new right of way, dismantling, and removal, shall be paid by the state of Montana through the state highway commission. In case of any such relocation of
facilities, as aforesaid, the public utility owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location or new locations. “(b) Definitions. For the purposes of this section :
“The term ‘utility’ shall include publicly, privately and cooperatively owned utilities.
“The term ‘cost of relocation’ shall include the entire amount paid by such utility properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility; and,
“The term ‘Interstate System’ means any highway now included or which shall hereafter be included as a part of the National System of Interstate and Defense Highways, as provided in the Federal-Aid Highway Act of 1956, and any acts supplemental thereto or amendatory thereof.
“(c) The cost of relocating utility facilities in connection with any project on the Federal-Aid Primary System or Federal-Aid Secondary System or on the Interstate System is hereby declared to be a cost of highway construction.”
First, the act does not relate to relocation of facilities on all highway projects carried on within the state, but only to the relocation of facilities on the Federal-Aid Primary, Federal-Aid Secondary, and Interstate Systems. Under
Second, the state will have to pay utilities for relocation costs incurred in connection with the above-named projects only when the State Highway Commission, after a public hearing, shall determine that it is necessary for certain facilities to be relocated. If the utility companies take it upon themselves to move their facilities without having been ordered to do so by the commission, they will not be entitled to any reimbursement from the state. The propriety of ordering any relocation of facilities rests entirely within the State Highway Commission‘s discretion, and whether money will be spent on relocation of utility facilities will depend upon their decision.
Third, the utility companies of this state will not receive any substantial benefit by such act, but will merely be protected against any undue and extreme loss which might otherwise be occasioned by the “crash program of unprecedented scale” which was promulgated in the Federal-Aid Highway Act of 1956.
When the Federal-Aid Highway Act of 1958 was under consideration, Senate Report No. 1407 of the Committee on Public Works, recommended an amendment to section 111 of the Federal-Aid Highway Act of 1956 to provide for reimbursement only when a state under state laws was required to pay for all or any part of such cost, limited to 70 percent of the cost which the state was obligated to pay.
In opposing the report of the committee certain members of the Senate expressed their views in these words:
“It is submitted that there was valid reason for the States to amend their laws. The conditions under which utilities agreed to bear the burden of relocation costs disappeared, or at the very least were radically and substantially changed, with the enactment of Federal-Aid Highway Act of 1956.
“In the old days, such relocation costs were encountered on a gradual and small scale. They embraced relatively minor op-
erations in type. Their sum total was within the reach of the utilities’ ability to fund same, whether the utility was publicly, privately, or cooperatively owned. “Under the act of 1956 all of this was heavily changed. A crash program of unprecedented scale was inaugurated. Federal funds available for highway construction rocketed from $875,000 to $2 billion within a single year. Greater increases are scheduled for following years. In addition, the type of construction changed. The modern, multilane, high speed traffic ways require rights-of-way of spectacular width; cloverleafs, overpasses, and underpasses; and long distances thereof through urban areas, bringing expressways to the heart of metropolitan centers.
“These changes brought about inordinate expenditures for moving vast amounts of facilities at a great cost to the users of the utilities. They bring about a tremendously different treatment than when highway improvement was a local convenience and local cost, relatively speaking.
“Under the old order there was not only a smaller cost but also a greater identity between the users of the utilities affected, and the taxpayer who provided funds for the highway improvement which resulted.
“A special unfairness which results from these costs is attributable to the Interstate Highway System. Some communities and some utilities will pay the entire load. Most of the communities and utilities, many located just a short distance away, will not pay any of the load, and yet they will benefit almost as fully from the construction of the Interstate System. * * *
“Should an Interstate Highway run to the heart of a small utility (it might be an REA, a co-op phone company, or electrical distribution system, or what have you), or through or near a small city or village, it is conceivable that fiscal ruin could be visited upon them.” 2 U.S.Code Cong. & Ad. News, 85th Cong., 2d Sess., pp. 2397-2398 (1958).
Fourth, section 32-1625 does not provide for complete reim-
Plaintiff also insists that to hold section 32-1625 constitutional would result in changing a bare permissive use of public roads by utilities into a valuable vested property right. The right of the intervening telephone and telegraph companies to maintain their poles and lines within this state has a constitutional basis.
“A telegraph, telephone, electric light, or electric power line, corporation, or public body or any other person owning or operating such, is hereby authorized to install its respective plants and appliances necessary for service, and to supply and distribute electricity for lighting, heating, power, and other purposes, and to that end to construct such telegraph, telephone, electric light or electric power line or power lines, from point to point, along and upon any of the public roads, streets, and highways in the state of Montana, by the erection of necessary fixtures, including posts, piers, and abutments necessary for the wires. But the same shall be so constructed as not to incommode or endanger the public in the use of said roads, streets, or highways, and nothing herein shall be so construed as to restrict the powers of city or town councils.”
It should be noted that when the legislative assembly enacted
That states have the power to encourage the running of telephone, telegraph, and power lines across the country by providing the utility companies a place in the public roads, to locate these lines cannot be doubted. See 29 C.J.S., Electricity, § 16, p. 525; 52 Am.Jur., Telegraphs and Telephones, § 28, et seq., p. 57. This encouragement was especially necessary here in the west where the states in their fight for economic development were faced with the problem of small population and large unpopulated areas.
Under the common law, the right the utility companies acquired by the state‘s permission to locate facilities in the public ways was not an absolute property right. The state in the exercise of its police power could require the utility companies to relocate their facilities and this would not be a taking of property in the constitutional sense. New Orleans Gas Light Co. v. Drainage Comm., 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831. However, it has been pointed out time and time again that a state could abrogate its common law in this respect and provide for reimbursement to utility companies when they are required to remove their facilities from public ways by an exercise of the state‘s police power. Opinion of Justices, 152 Me. 449, 132 A.2d 440; Delaware River, etc. v. Pennsylvania Pub. Utility Comm., 393 Pa. 639, 145 A.2d 172; Baltimore Gas & Electric Co. v. State Roads Comm., 214 Md. 266, 134 A.2d 312; Lehigh Valley R. Co. v. Canal Board, 204 N.Y. 471, 97 N.E. 964; Westchester E. R. Co. v. Westchester County P. Comm., 255 N.Y. 297, 174 N.E. 660; Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642; State v. City of Dallas, Tex. 1960, 331 S.W.2d 737; Northwestern Bell Telephone Co. v. Wentz, N.D. 1960, 103 N.W.2d 245; State Road Comm. v. Utah Power & Light Co., 1960, 10 Utah 2d 333, 353 P.2d 171. By changing the common law the state does not necessarily give the utility companies a vested property right to place their facilities in the public ways which they never had before; it merely recognizes an equitable and just right in the utility companies to be protected against any loss they might suffer in the event they are required to remove their facilities from the public ways by an exercise of the state‘s police power.
In Oswego & Syracuse R. Co. v. State, 226 N.Y. 351, 124 N.E. 8, the Court of Appeals of New York was concerned with the problem whether the state or the railway company should bear the cost of rebuilding a railroad bridge which would be destroyed by the construction of a barge canal pursuant to the Barge Canal Act. The court recognized the fact that the state had no legal duty to pay for the cost of reconstructing the bridge and might have required the railroad to rebuild the bridge at its own expense, but said that the Barge Canal Act provided that new bridges were to be built at the expense of the state. In holding that it was proper for the state to recognize claims which have their roots in equity and justice, Mr. Justice Cardozo, speaking for the court stated:
“The state was about to execute a great public work. It saw that in the doing of that work there would be destruction of private property. Much of the damage would be damnum absque injuria. None the less is would be damage. The result would be inequality in the distribution of public burdens. Some would pay more dearly than others in proportion to benefits received. This inequality, the Legislature, fixing in advance the conditions of the undertaking, had the power to correct. It might refuse to launch an enterprise at the price of hardship and oppression. There was power to destroy, and leave the loss where it might fall. There was also power to pay for the destruction, and thereby re-establish some uniformity of proportion between benefits and burdens. The question was for the Legislature whether the equity of compensation was strong enough to merit recog-
nition. We cannot hold it to be illusory.” Oswego & Syracuse R. Co. v. State, supra, 226 N.Y. at page 357, 124 N.E. at page 10.
This court has also recognized the principle that even though the state is under no legal duty to compensate a particular loss, the legislature might assume liability for an equitable and just claim. There is no common-law duty for the sovereign to reimburse individuals for losses occasioned by tortious acts of the sovereign‘s agents. In Mills v. Stewart, 76 Mont. 429, at page 440, 247 P. 332, at page 335, 47 A.L.R. 424, this court recognized that the state could abrogate this common-law lack of duty wherein it stated, that “since it is not prohibited by the state Constitution or by the supreme law of the land to assume liability for the torts of the state‘s agents, it may do so.”
The same equitable considerations which existed in the Oswego case so as to justify the state‘s paying for the cost of reconstructing the railroad‘s bridge are present in the instant case. In that case, neither the railroad, its passengers, nor its stockholders would receive any benefit as a result of the destruction of its old bridge and the construction of a new one in the same location providing more clearance over the river. The old bridge which the state required the railroad company to destroy was only seven years old. The purpose of raising the bridge was to permit the state to increase navigation facilities on the river thereby creating a competitor to the railroad and benefiting the public in general.
In the instant case, neither the utilities, their users, their stockholders nor cooperatively owned utilities or their members, will receive any direct and substantial benefit from relocation of the utilities’ facilities. It cannot be contended that the relocation will make the service to the users any better, or reduce their rates, or provide any more income for the company. The purpose behind requiring relocation of existing facilities is to provide the traveling public with wider, straighter, and better highways. It is only equitable that the state should place the
If it is determined that section 32-1625 was intended to abrogate the common-law duty of the utilities to pay for the relocation of their facilities when such relocation was required by the State Highway Commission in connection with any project in the Federal-Aid Primary, Federal-Aid Secondary, or Interstate Systems and to recognize their equitable and just claim for reimbursement, then the intervenors’ right to reimbursement would not depend on whether they had a vested property right to locate their facilities in the public ways in Montana and it would be unnecessary in disposing of this case to determine the exact nature and extent of that right.
During the period 1952-1956, Committees of Congress held numerous and extensive hearings on the question of reimbursement of utilities for costs incurred in relocating facilities when such relocation was made necessary by the construction of new Federal-Aid highways. As a result of these hearings, and recognizing that the relocation of such facilities was a necessary part of new highway construction, Congress in 1956 specifically authorized the use of Federal funds to reimburse states for amounts paid to utilities for the non-betterment cost of relocating such facilities by enacting the Federal Highway Act of 1956.
“(a) Availability of Federal Funds for Reimbursement to States. Subject to the conditions contained in this section, whenever a State shall pay for the cost of relocation of utility facilities necessitated by the construction of a project on the Federal-aid primary or secondary systems or on the Interstate System, including extensions thereof within urban areas, Federal funds may be used to reimburse the State for such cost in the same proportion as Federal funds are expended on the project: Provided, That Federal funds shall not be apportioned to the States under this section when the payment to the utility violates
the law of the State or violates a legal contract between the utility and the State. “(b) Utility Defined.-For the purposes of this section, the term ‘utility’ shall include publicly, privately, and cooperatively owned utilities.
“(c) Cost of Relocation Defined.-For the purposes of this section, the term ‘cost of relocation’ shall include the entire amount paid by such utility properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.”
Prior to the enactment of that act, it had been the practice of the Bureau of Public Roads to reimburse states for the amounts paid by them for the relocation of utility facilities located on highways being constructed with Federal aid. 2 U.S.Code Cong. & Ad. News, 85th Cong., 2d Sess., p. 2396 (1958). Many states at this time were not paying for such relocations, but were following the common law whereby utilities, who placed their facilities on public ways by reason of a permissive right granted by the state, had to pay the cost of relocating such facilities in the event relocation was made necessary by the state exercising its police power. In enacting
“Since the enactment of the Federal-Aid Highway Act of 1956, which increased the Federal share of the cost of constructing the Interstate System to 90 percent, and up to 95 percent in some public land States, and expressly authorized the use of Federal-aid funds for reimbursement of the cost of relocating utility facilities, significant action has been taken in many State legislatures. 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.” 2 U.S.Code Cong. & Ad.News, 85th Cong., 2d Sess., p. 2383 (1958).
Montana is one of the 16 states listed in which such legislation became law. Section 32-1625 was passed by the legislative assembly of Montana so as to remove any doubt about this state‘s right to receive the benefit of the Federal aid authorized by
“No monies paid into the state treasury which are derived from fees, excises or license taxes relating to registration, operation or use of vehicles on the public highways or to fuels used for the propulsion of such vehicles, * * * shall be expended for other than cost of administering laws under which such monies are derived, statutory refunds and adjustments provided therein, payment of highway obligations, cost of construction, reconstruction, maintenance and repair of public highways, roads, streets, and bridges. * * *”
Plaintiff‘s contention is that the cost of relocating utility facilities made necessary by highway construction is inherently not part of the “cost of construction“, and that the legislative assembly of Montana could not by declaration make something a cost of construction which is inherently not such a cost. If this were true, it would be a violation of
The question whether costs incurred in relocating utility facilities can be properly considered as part of the cost of constructing highways has been considered by many authorities, including Congress. It was the opinion of Congress in enacting
Many legislatures by their enactments have expressly found that relocation expenses are an integral part of the cost of highway construction. See Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, 650, note 10.
The highest courts of five states, Utah, Texas, North Dakota, New Hampshire, and Minnesota, have expressly declared that the cost of relocating utility facilities in connection with a highway improvement program can be properly considered as a part of the cost of constructing the highway. State Road Comm. v. Utah Power & Light Co., 1960, 10 Utah 2d 333, 353 P.2d 171; State v. City of Dallas, Tex. 1960, 331 S.W.2d 737; Northwestern Bell Telephone Co. v. Wentz, N.D. 1960, 103 N.W.2d 245; Opinion of the Justices, 101 N.H. 527, 132 A.2d 613; Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, supra.
Nine states, Idaho, Maine, Minnesota, New Hampshire, New Mexico, North Dakota, Tennessee, Texas, and Utah have passed upon the constitutionality of statutes similar to section 32-1625 providing for reimbursement to utilities for costs incurred in relocating their facilities in connection with Federal-aid highway projects. State ex rel. Rich v. Idaho Power Co., 1959, 81 Idaho 487, 346 P.2d 596; Opinion of the Justices, 152 Me. 449, 132 A.2d 440, supra; Minneapolis Gas Co. v. Zimmerman, supra; Opinion of the Justices, 101 N.H. 527, 132 A.2d 613, supra; State Highway Comm. v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007; Northwestern Bell Telephone Co. v. Wentz, N.D. 1960, 103 N.W.2d 245; State v. Southern Bell Telephone & Telegraph Co., Tenn. 1958, 319 S.W.2d 90; State v. City of Dallas, Tex. 1960, 331 S.W.2d 737; State Road Comm. v. Utah Power & Light Co., 1960, 10 Utah 2d 333, 353 P.2d 171.
Idaho, Maine, Minnesota, New Hampshire, North Dakota and Texas were the only states where it was claimed that the legislation under consideration violated a prohibition similar to that contained in our antidiversion amendment. The latter four states specifically held that such a prohibition was not violated by legislation which provided for payment of relocation costs to the utility companies out of state highway funds where the legislature had specifically declared that relocation costs were to be considered as part of the cost of constructing the highway.
The North Dakota court in the Northwestern Bell Telephone case [103 N.W.2d 256] first pointed out that their constitutional provision, which is similar to Montana‘s antidiversion amendment, “does not define or restrict the meaning of ‘construction’ in any way“, and then stated, “We believe it embraces ‘everything appropriately connected with, and necessarily incidental to, to complete accomplishment of the general purpose for which
Montana‘s antidiversion amendment does not define the words “construction, reconstruction, maintenance and repair of public highways, roads, streets, and bridges“, and to give these words the narrow interpretation contended for by the plaintiff would seriously curtail and limit the Highway Commission in its activities. For example, if the relocation of utility facilities is declared not to be a “cost of construction” within the meaning of the antidiversion amendment, the Highway Commission could not spend highway funds covered by that amendment to relocate facilities located on fee rights-of-way. Since many utility facilities in Montana are located on utility owned rights-of-way, and since in an area where they must be moved in order to build new Federal highways, admittedly the state would have to reimburse the utility, it would be necessary for the Highway Commission to secure funds from sources other than those mentioned in the antidiversion amendment. This would seriously delay any major highway project.
The courts of Idaho and Maine held that statutes similar to section 32-1625 resulted in the use of highway funds for a non-highway purpose and were therefore violative of constitutional provisions similar to our antidiversion amendment. Strong dissents in both states pointed out the fact that the majority had given the word “construction” an unreasonably narrow interpretation. In his dissent in Opinion of the Justices, 152 Me. 449, 132 A.2d 440, 444, supra, Justice Webber stated, “I am satisfied that the limitation placed upon the expenditure of highway funds was designed and intended to prevent raids on those funds for purposes entirely unrelated to the highway program. In my view expenditures which may reasonably be considered as incidental to the construction or reconstruction of highways may properly be met out of highway funds whenever
There is further reason why this court should not follow the decision of the Idaho court, but rather the decision of the Minnesota court. This is based on the fact that Idaho has a different policy than Montana or Minnesota on what is to be regarded as a primary and proper use for which highways are designed.
In Minneapolis Gas Co. v. Zimmerman, supra, 253 Minn. 164, 91 N.W.2d 642, 649, the Minnesota court, after quoting the following from Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111, 112, 28 L.R.A. 310:
“‘* * * the public easement in a highway is not limited to travel or transportation of persons or property in movable vehicles. * * * But it is now universally conceded that urban highways may be used for constructing sewers and laying pipes for the transmission of gas, water, and the like for public use. * * * The uses referred to of urban streets are not in aid of travel, but are themselves independent and primary uses, although all within the general purpose for which highways are designed. Neither can a distinction between urban and rural ways be sustained * * *‘“, stated at page 649 of 91 N.W.2d:
“Clearly since the Cater decision in 1895, Minnesota has been definitely committed to the view that the use of rights-of-way by utilities for locating their facilities is one of the proper and primary purposes for which highways are designed even though
Such use of streets and highways is conducive to the public welfare and serves one of the purposes for which they are dedicated.
In Hershfield v. Rocky Mt. B. T. Co., 12 Mont. 102, at page 118, 29 P. 883, at page 887, this court also committed itself to this view when it stated “We think that to use the street in a reasonable manner, and to a reasonable extent, for this purpose [placing telephone poles and lines along the streets] is just and proper, and is within the uses to which the street may lawfully be put, when such use is sanctioned by the public through its duly-authorized municipal agents.”
In State ex rel. Rich v. Idaho Power Company, 81 Idaho 487, 346 P.2d 596, the Idaho court expressly held that it was not committed to this view.
Plaintiff‘s claim that the legislative assembly of Montana could not expressly declare that costs of relocation are to be a cost of highway construction is unsound. He seems to be under the impression that the “cost of relocating utility facilities” does not fall within the plain and ordinary meaning of “cost of construction” and that the legislative definition of words should not extend beyond the plain and ordinary meaning given to them. However, as pointed out in Montana Beer R. P. Ass‘n v. State Bd. of Equalization, 95 Mont. 30, at page 34, 25 P.2d 128, at page 130: “In construing a statute, ordinarily, the words employed must be given their usual meaning, unless it is made apparent from the context of the subject that a different one was intended. * * * Here it is manifest from the context of the act under consideration that the above terms were not used in their usual and ordinary sense and, therefore, this court in construing the statute is bound to follow the legislative definitions contained in the act, even though they are contrary to the usual and ordinary meaning of the words.”
* * *
The legislative assembly of Montana has expressly declared that the definition of “cost of highway construction” is to include “cost of relocating utility facilities.”
This is a reasonable definition, one adopted by the Congress of the United States and approved by the majority of courts of last resort in states where the matter has arisen, and therefore this court will not interfere.
We hold therefore, that section
We now come to plaintiff‘s second constitutional objection, to-wit: that section
“Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation, or become a subscriber to, or a shareholder in, any company or corporation, or a joint owner with any person, company or corporation, except as to such ownership as may accrue to the state by operation or provision of law.”
We have heretofore pointed out that no direct or substantial benefit will accrue to the utilities and thus at the outset it appears that this constitutional challenge is not well-taken. However, since plaintiff has raised the question we will touch upon it.
Various states, other than those nine wherein relocation statutes similar to section
Seven of the nine states which considered the constitutionality of relocation statutes similar to section
This court has been called upon many times to determine the meaning of
In Willett v. State Board of Examiners, 112 Mont. 317, 115 P.2d 287, a leading case involving
“The test to be adopted in determining whether a donation or grant is prohibited under this section is whether the donation or grant is for a public purpose. * * * What is a ‘public purpose’ is a question primarily for legislative determination, with which we will not interfere unless there has been a clear abuse of power. * * * That the project here is for a public purpose there can be no reasonable doubt; at least we cannot say that the legislature abused its power in so determining. The fact that the named organizations incidentally derive special benefit from the project does not bring the Act in conflict with section 1, Article XIII.”
* * *
This quotation points out three propositions which are of primary significance in determining whether legislation is violative of
Propositions (1) and (3) have been reiterated repeatedly in a long line of cases considering the constitutionality of legislation under
It cannot be questioned that legislation providing for the construction of public highways serves a public purpose; therefore, expenditures for the cost of constructing such highways are not violative of
Also, where it becomes reasonably necessary to relocate utility facilities in order to improve the highway for public travel, an expenditure of funds to effect such relocation is properly a governmental function exercised for a public purpose of primary benefit to the entire community.
Plaintiff, in contending that the legislation under consideration violates
This statement is not correct, and insofar as the Cramer case indicates that the nature and capacity of the recipient of state monies is determinative of whether
The expenditures authorized by section
Next, plaintiff maintains that section
Plaintiff contends that certain permits issued by the State Highway Commission to the Montana Power Company authorizing it to run natural gas pipes under certain highways at four specific places creates contractual obligations which will be impaired by section
Even if the permits could be construed as imposing upon the utilities a contractual obligation to relocate at their own expense, there is nothing in the contract clause of the Montana or United States Constitutions which prevents abrogation of a contract by the contracting parties. Minneapolis Gas Co. v. Zimmerman, supra, 253 Minn. 164, 184, 91 N.W.2d 642, 656.
The constitutional prohibition of statutes impairing the obligation of contracts prevents a state from unilaterally abrogating contracts which it has entered into, but it does not affect the validity of statutes releasing obligations due the state. City of Worcester v. Worcester Consol. Street Ry. Co., 196 U.S. 539, 25 S.Ct. 327, 49 L.Ed. 591.
Plaintiff‘s next contention is that section
“No bill shall be passed giving any extra compensation to any public officer, servant or employee, agent or contractor, after services shall have been rendered or contract made, nor providing for the payment of any claim made against the state without previous authority of law, except as may be otherwise provided herein.”
At the outset it should be noted that this provision of the Constitution contains two prohibitions. It prohibits extra compensation after services shall have been rendered or contract made, and it prohibits the payment of any claims without previous authority of law.
This court in Mills v. Stewart, supra, 76 Mont. 429, 247 P. 332, 47 A.L.R. 424, made a clear, succinct and concise statement of what this constitutional provision means and how it should be applied. The court at page 437 of 76 Mont., at page 334 of 247 P. said:
“The meaning of the first portion of the section is perfectly clear: It is beyond the power of the legislature to award extra compensation for the services of any officer, agent, servant, or employee of the state after the services have been performed (Lloyd v. Silver Bow County, 11 Mont. 408, 28 P. 453), or, after a contract has been awarded, to allow extra compensation to the contractor for the work contemplated by his contract. The declaration that the Legislature shall not provide for the payment of any claim made against the state without previous authority of law was apparently intended to prevent the recognition and discharge of claims arising from ultra vires acts of officers or agents of the state. It refers exclusively to claims arising out of contract, and has no application here. This is the history of like provisions found in other state Constitutions.”
From the foregoing analysis by the court, it is clear that
Section
Plaintiff also contends that section
“Except as hereinafter provided, no obligation or liability of any person, association or corporation, held or owned by the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released or postponed, or in any way diminished by the legislative assembly; nor shall such liability or obligation be extinguished, except by the payment thereof into the proper treasury.”
Implicit in the argument is the proposition that the common-law duty of the utility companies to relocate their facilities at their own expense constitutes an obligation or liability within the meaning of
Constitutional provisions similar to
It cannot be reasonably or logically contended that there was created any fixed or certain money obligation owed by the utility companies to the state. The common-law duty of the utility
Furthermore, the language of the constitutional provision itself tends to indicate that it was meant to apply only to fixed and liquidated claims owed to the state, its counties, or its municipal corporations.
The first part of the constitutional provision states that no obligation or liability shall be released, remitted or postponed, and then the second part of the provision states that: “* * * nor shall such liability or obligation be extinguished, except by the payment thereof into the proper treasury.”
It is apparent that the “nor” clause refers to the same obligation or liability discussed at the beginning of the section. It thus becomes apparent that the section as a whole applies only to such obligations or liabilities which are capable of being “extinguished” by payment into the proper treasury. This points directly to a liability or obligation which has been reduced and liquidated into a definite money account.
There is no violation of
Plaintiff‘s challenge that section
For the foregoing reasons, the judgment of the lower court is affirmed.
MR. JUSTICES ANGSTMAN and CASTLES concur.
MR. JUSTICE BOTTOMLY dissenting.
I cannot agree with the majority opinion in this serious and far-reaching matter.
The question before us here is whether or not Chapter 254,
However, in the face of this mandate of the people, the Leg
Any voter at the constitutional election of 1956 would rightly declare that under the above-constitutional provision (
The Supreme Judicial Court of the State of Maine in Opinion of the Justices, 152 Me. 449, 455, 132 A.2d 440, 443, wherein the same question was submitted to the court, held that “In our opinion the relocation of a utility facility is not to be construed as construction or reconstruction of a highway within the meaning of Art. IX, Sec. 19 of the Constitution.
“We do not commonly consider that a power company in erecting a pole line or a water district in laying a pipe in a highway is constructing a highway. To an even lesser degree would we consider the construction of a pole line or a water
“The language of the Constitution should not, in our view, be extended beyond its plain and ordinary meaning.”
Under Chapter 254, Mont. Session Laws of 1957, supra, as interpreted by the majority opinion, is it possible that the State of Montana is now donating and granting to such utilities through the State Highway Commission the right to now convert the permissive use such utilities had of the highways of our state, to a permanent property right in our highways? If so, and of course that is the holding, then such a valuable grant, donation and gift by the State of Montana, through the Montana Highway Commission from its highway funds, runs absolutely counter to, and transgresses
Under the debates in the constitutional convention, it is apparent that the people adopted
“The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.”
This positive prohibition of our State Constitution (
The people of Montana, by approving this constitutional provision (
- Cost of administering the laws under which such monies are derived;
- Statutory refunds and adjustments provided therein;
- Payment of highway obligations;
- Cost of construction and reconstruction of highways;
- Maintenance and repair of the public highways, public roads, public streets and public bridges; and
- The cost of dissemination of public information relating to the public highways, public roads, public streets and public bridges of the State of Montana in the sum as authorized by the Legislature for the dissemination of such information.
The people delegated to their Legislature only one item, and that was to make an appropriation for the dissemination of public information and nothing else.
In the event the people had wanted to donate, or grant or give to the utilities these millions, and if the people had wanted any
It should be noted that the people, in their constitutional provision (
These public highways, held in trust by the State for all of the people, may not be frittered away to private or public utilities if our constitutional form of government is to prevail.
Under the common law, and under our Constitution, no one, the Legislature, the Governor, nor this Court may divest the State of its sovereign and complete ownership of all public highways unless and until the people themselves do so in their Constitution. These public highways are not only held in trust for the people by the State, but are controlled under the police power of the State, which cannot be waived or set aside until the Constitution so directs.
In the famous case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, Chief Justice Marshall held that “The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
“If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”
The Legislature may, by statute, declare the public policy of this State as long as the statute does not infringe on the Constitution. In other words, a statute passed in accordance with law may declare the public policy, but a statute cannot declare the public policy contrary to the supreme law of the land, the Federal and State Constitutions. As was said in City of Cincinnati v. Harth, 101 Ohio St. 344, 128 N.E. 263, 266, 13 A.L.R. 308, “The duty of the court is to uphold the Constitution, even if that act shall temporarily operate to the hinderance of some beneficial result.”
It has been argued that it is only equitable and just for the Legislature to pay to the utility corporations, the costs of relocating their facilities. That may be, but the legislative power is restricted, by our Constitution, as above-noted.
The fact is, that Constitutions do not vary with the changing tides of the legislators’ desires. The people themselves expressed their will in their Constitution, and it is hornbook law that such prohibitions written into the Constitution are inflexible and are the fundamental law of the land until the people themselves change their Constitution by their vote. This Constitution must be interpreted and declared by the Court as understood and declared at the time it was approved.
The case of Oswego & Syracuse R. R. Co. v. State, 226 N.Y. 351, 124 N.E. 8, depended on by defendants, and quoted from at length in the majority opinion, has no valid application here
Since the peoples’ approval of their constitutional provision at the general election of November 6, 1956, known as the anti-diversion provision (
It cannot be denied that the cost of construction, reconstruction, relocating, and repairing of a public highway is for a public governmental function, and that expenditures therefor are not prohibited by the Constitution. It is also certain that under our Constitution the cost of locating and relocating and providing a new location for a utility or utilities, personal, private and public in nature, no part of which is state or federal property, nor under the absolute control of the State, cannot lawfully be paid by the State of Montana out of any funds in the state treasury, either by and through the State Highway Commission, the Governor of this State, the Legislature, or this Court.
It is manifest that Chapter 254, Laws of 1957, was enacted to extend the credit of the State to said corporations, persons, communities and utilities, none of whom are under the absolute control of the state, for the purpose of insuring and reimbursing them for 75 percent of all costs they may incur in locating or relocating their poles, lines, pipes and other facilities and for 75 percent of a new location and right-of-way, if necessary. There is no limit, under Chapter 254, supra, as to the amount that may be paid to said utilities under the 75 percent gift, grant and donation. After the State pays them these proposed millions precisely what part or portion of the beneficiary corporation, community or utility will belong to the State of Montana?
Is Chapter 254, supra, the entering wedge in the process of divesting the individual and the private enterprise of their utility assets so that eventually they may be taken over and operated by our Federal Government? These utility lines so located or to be located along and under our government owned highways are exposed to the greatest danger in event of a bombing or other war emergency. All these highways would prove to be first targets in any such emergency and their destruction would mean the destruction of the utility facilities there situate.
In my opinion, the Supreme Court of New Mexico in State Highway Commission of New Mexico v. Southern Union Gas Company, a Delaware Corporation, 65 N.M. 84, 332 P.2d 1007, rehearing denied 1959, 65 N.M. 217, 334 P.2d 1118, states the law. Said decision was followed in another case set forth in Id., 65 N.M. 98, 332 P.2d 1017. The New Mexico Supreme Court had under consideration a legislative act of their Legislature, Chapter 237, Laws of 1957, which for all intents, and purposes is identical with our Chapter 254, Laws of 1957. New Mexico‘s Constitution also contains a section (
The Supreme Court of Idaho had the same question before it in State of Idaho v. Idaho Power Company, 1959, 81 Idaho 487, 346 P.2d 596, 612, in which that court in an exhaustive opinion (which reflects great credit on their court) covering an act of their Legislature, being Chapter 227 of the Idaho Session Laws of 1957, similar to our Chapter 254, Montana Session Laws of 1957, and providing as our Chapter 254 does that the cost of relocating, etc., of a utility shall be a part of the cost of construction, etc., of the highways in the highway system. The Supreme Court of Idaho in the above-mentioned case, after setting out the facts and placing their Chapter 227, Laws of 1957, alongside of their constitutional prohibition, being
Should any lawyer or person place our constitutional provision (
Because Chapter 254, Laws of 1957, which provides that all cost of locating or relocating, up to 75 percent thereof, of utility facilities is declared to be a cost of highway construction, to be paid out of the dedicated trust funds of the State highway fund, by and through the said State Highway Commission, is in direct conflict with our State Constitution,
MR. JUSTICE ADAIR dissenting.
I am wholly unable to agree with the majority opinion on this appeal. Accordingly, upon the grounds and for the reasons recited by Mr. Justice Bottomly in his above-dissenting opinion, I concur in such dissent.