152 Me. 449 | Me. | 1957
Senate Order Propounding Question STATE OF MAINE
In Senate, April 24, 1957
WHEREAS, it appears to the Senate of the 98th Legislature that the following is an important question of law and the occasion a solemn one; and
WHEREAS, there is pending before the Senate of the 98th Legislature, a bill entitled “An Act Relating to Cost of Relocating Facilities in Federal-Aid Interstate Highway Projects,” (Senate Paper 385, Legislative Document 1081) as amended by Senate Amendment A (Legislative Document 1510) ; and
ORDERED, that in accordance with the provisions of the Constitution of the State, the Justices of the Supreme Judicial Court are hereby respectfully requested to give the Senate their opinion on the following question:
Would the bill, “An Act Relating to Cost of Relocating Facilities in Federal-Aid Interstate Highway Projects,” (Senate Paper 385, Legislative Document 1081) as amended by Senate Amendment A (Legislative Document 1510), if enacted by the Legislature, be constitutional?
In Senate Chamber, April 24, 1957. Read and passed.
CHESTER T. WINSLOW, Secretary
True Copy.
Attest: CHESTER T. WINSLOW.
Name: Parker
County: Piscataquis
NINETY-EIGHTH LEGISLATURE
Legislative Document No. 1510
In Senate, April 19, 1957.
Read and adopted. Sent down for concurrence and ordered printed.
CHESTER T. WINSLOW, Secretary
Presented by Senator Cole of Waldo.
IN THE YEAR OF OUR LORD NINETEEN HUNDRED FIFTY-SEVEN
SENATE AMENDMENT “A” to S. P. 385, L. D. 1081, Bill, “An Act Relating to Cost of Relocating Facilities in Federal-Aid Interstate Highway Projects.”
Amend said Bill by striking out everything after the enacting clause and inserting in place thereof the following:
R. S., c. 23, § 23-A, additional. Chapter 23 of the Revised Statutes is hereby amended by adding thereto a new section, to be numbered 23-A, to read as follows:
‘Sec. 23-A. Payment for cost of relocating facilities in interstate system. Any utility which is required to move or relocate its facilities under the provisions of this section from or in any way because of construction needs in building the interstate system under the Federal-Aid Highway Act of 1956 on projects for which the contracts are signed after the effective date of this act shall be reimbursed for the cost of relocation of such facilities as said cost is defined in said Federal-Aid Highway Act. The State Highway Commission may make rules and regulations for the determination of such cost in conformity with applicable Fedei*al rules and regulations under said Act. The Commission shall have such rights to inspect the books of account of the utility as may be required in determining the reimbursable costs provided in this section.
Whenever the Commission shall determine that any utility facility which now is, or hereafter may be, located in, over, along or under any way should be moved or relocated because of construction needs in building said interstate system, the utility owning or operating such facility shall relocate or move the same in accordance with an order of the
“Utility” as used in this section shall mean and include any public utility under the jurisdiction of the Public Utilities Commission and also any corporation which owns and operates a telephone or telegraph system or an oil pipe line system and which is subject to the jurisdiction of the Federal Communications Commission or Interstate Commerce Commission.’
Transmitted by Director of Legislative Research pursuant to joint order.
NINETY-EIGHTH LEGISLATURE
Legislative Document No. 1081
S. P. 385 In Senate, February 28, 1957
Referred to the Committee on Highways, sent down for concurrence and ordered printed.
CHESTER T. WINSLOW, Secretary
Presented by Senator Parker of Piscataquis.
IN THE YEAR OF OUR LORD NINETEEN HUNDRED FIFTY-SEVEN
AN ACT Relating to Cost of Relocating Facilities in Federal-Aid Interstate Highway Projects.
Be it enacted by the People of the State of Maine, as follows:
R. S., c. 23, § 19-A, additional. Chapter 23 of the Revised Statutes is hereby amended by adding thereto a new section to be numbered 19-A, to read as follows:
‘Sec. 19-A. Payment for cost of relocating facilities in federal-aid highway projects. Whenever the State Highway Commission shall determine that any public utility facility which now is, or hereafter may be, located in, over, along or under any highway in the interstate system as defined in the Federal-Aid Highway Act of 1956 should be relocated or removed, the public utility owning or operating such facility shall relocate or remove the same in accordance with the order of the Commission; provided that the cost of relocation or removal, including the cost of installing such facilities in a new location, and the costs of the lands, or any rights and interests in land and any other rights required to accomplish such relocation, shall be ascertained and paid by the State as part of the cost of such federally aided project. 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.’
ANSWER OF THE JUSTICES
To the Honorable Senate of the State of Maine:
In our opinion the Act is constitutional. However, the expenditure of the revenues described in Art. IX, Sec. 19 of
Under the proposed Act, the State will pay the cost of relocation of public utility facilities arising from the construction of an interstate system of highways under the Federal-Aid Highway Act of 1956.
In considering the constitutionality of the Act we must keep in mind both the Federal Act and our State Constitution.
The Federal-Aid Highway Act of 1956 reads, in part:
“Sec. 111. Relocation of Utility Facilities
(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.”
“All revenues derived from fees, excises and license taxes relating to registration, operation and use of vehicles on public highways, and to fuels used for the propulsion of such vehicles shall be expended solely for cost of administration, statutory refunds and adjustments, payment of debts and liabilities incurred in construction and reconstruction of highways and bridges, the cost of construction, reconstruction, maintenance and repair of public highways and bridges under the direction and supervision of a state department having jurisdiction over such highways and bridges and expense for state enforcement of traffic laws and shall not be diverted for any purpose, provided that these limitations shall not apply to revenue from an excise tax on motor vehicles imposed in lieu of personal property tax.”
First: Apart from Art. IX, Sec. 19 of the Constitution, which we later discuss, we find no objection to the Act on constitutional grounds. At common law there is no obligation to pay for the removal or relocation of public utility facilities required by changes in highways. Belfast Water Co. v. Belfast, 92 Me. 52 (1898); Rockland Water Co. v. Rockland, 83 Me. 267 (1891); Telephone v. Cyr, 95 Me. 287 (1901). The State, however, may, in our view, pay for the cost of relocating such facilities, if it chooses to do so. The purpose of such expenditures is public in nature, and,the extent and conditions under which the State may meet such costs are for the Legislature to determine.
Second: 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 de
The language of the Constitution should not, in our view, be extended beyond its plain and ordinary meaning.
The expenditure of revenues from sources enumerated in Art. IX, Sec. 19, supra, for these purposes would, therefore, violate the Constitution. It will be noted, however, that there is no constitutional prohibition against the expenditure for such purposes of funds derived from other sources.
■ Dated at Augusta, Maine, this 6th day of May, 1957.
Respectfully submitted:
I concur with the foregoing opinion except as it places an interpretation upon Art. IX, Sec. 19 of the Constitution of Maine which in my view is too narrow. 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 the Legislature elects. Presumably utility facilities present an obstacle to the construction or reconstruction of a highway and so must be removed to permit the work to go forward. Obviously, if the facilities are necessary and serviceable, they must be replaced with facilities which are adequate to perform a like service. The proposed legislative enactment provides that any increased
