Jones v. Burns
| Decision Date | 16 November 1960 |
| Docket Number | No. 10086,10086 |
| Citation | 357 P.2d 22,138 Mont. 268 |
| Parties | , 37 P.U.R.3d 14 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. Montana Power Company, a Corporation et al., Intervenors and Respondents. |
| Court | Montana Supreme Court |
Loble & Picotte and Patrick F. Hooks, Helena, for plaintiff and appellant. Patrick F. Hooks, argued orally.
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.
This is an appeal from a judgment of the district court of the first judicial district, Lewis and Clark County, holding section 32-1625, R.C.M.1947, to be constitutional in an action brought by plaintiff under the Uniform Declaratory Judgments Act against the defendants, who comprise the Montana Highway Commission, seeking a declaration of the rights of the parties particularly as to the obligation of the defendants under section 32-1625, R.C.M.1947, to reimburse private and cooperatively owned utilities, for relocating their facilities upon public highways, and challenging the constitutionality of the above section.
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 Mont.Const., art. XII, § 1b; art. XIII, § 1; art. III, § 11; art. V, § 29; art. V, § 39; and U.S.Const., art. I, § 10; and 30 U.S.C.A. § 191.
Initially, plaintiff asserts that if section 32-1625, R.C.M.1947, is held to be constitutional there will be a substantial diminution of highway funds in the State of Montana and that the utility companies of this state, whether privately, publicly or cooperatively owned, will be given a 'free ride.' A cursory reading of this section and the Federal Highway Act of 1956, 70 Stat. 383, § 111 (1956); 23 U.S.C.A. § 162 1, will point out the fallacy in plaintiff's assertion.
Section 32-1625, R.C.M.1947, enacted as Chapter 254, Session Laws of Montana, 1957, provides:
'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 23 U.S.C.A. § 162, the State of Montana will be reimbursed substantially by the Federal Government for all monies paid by the state to utility companies which are ordered to relocate their facilities in connection with such projects. The reimbursement will be in the same proportion that the Federal Government is contributing to the other costs on the project. On the Federal-Aid Primary and Secondary Systems this is 56.54 per cent, and on the Interstate System it is 65.23 per cent or 91.31 per cent, depending on which years appropriations are being used on the project. U.S.Code Cong. & Ad. News, Vol. II, 85th Cong., 2d Sess., p. 2374 (1958).
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% 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:
ability to fund same, whether the utility was publicly, privately, or cooperatively owned.
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