Opinion of the Justices

• Decision Date: 31 May 1957
• Citation: Opinion of the Justices, 132 A.2d 613, 101 N.H. 527 (N.H. 1957)
• Parties: OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

Page 613

132 A.2d 613

101 N.H. 527

OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

Submitted May 21, 1957.

Answer Returned May 31, 1957.

Morse, Hall, Morse & Gallagher, Concord, for New England Tel. & Tel. Co., for the bill.

Orr & Reno and John W. Barto, Concord, for New England Power Co. and Granite State Electric Co., also for the bill.

Sulloway, Hollis, Godfrey & Soden, Concord, for Public Service Co. of New Hampshire, Concord Electric Co., Exeter & Hampton Electric Co. and New Hampshire Electric Co., also for the bill.

The following resolution adopted by the Senate on May 8, 1957, was filed in this court May 9, 1957:

'Resolved, That the Justices of the Supreme Court be respectfully requested to give their opinion upon the following question of law: Do the provisions of Senate Bill No. 129, An Act relative to the federal aid highway act of 1956, violate the Constitution insofar as the cost of the relocation of facilities of any publicly, privately, or cooperatively owned utility within the limits of the highway to be relocated because of the construction or improvement shall be a part of the cost of construction or reconstruction?'

The following answer was returned:

To the Honorable Senate:

The undersigned Justices of the Supreme Court submit the following answer to the question contained in your resolution filed May 9, 1957, with reference to Senate Bill No. 129, entitled 'An Act relative to the federal aid highway act of 1956.'

Under the proposed bill the State will pay the cost of relocating utility facilities necessitated by the construction of the 'national system of interstate and defense highways' under the Federal-Aid Highway Act of 1956, 23 U.S.C.A. § 151 et seq., on a matching basis. The bill provides that the utility shall relocate its facilities whenever it is determined by the Commissioner of Public Works and Highways that it is necessary to do so under the Federal-Aid Highway Act of 1956. The bill specifically provides 'that the state shall reimburse the owner of such utility facilities for the cost of such relocation as a part of the cost of such construction or reconstruction.' The bill defines utility and cost of relocation exactly as defined in § 111(b) and (c) of the Federal-Aid Highway Act of 1956, which reads in part as follows:

'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.'

Utility facilities are located within public highways with permission and license and are subject to reasonable regulation and control under the police power. Bourget v. Public Service Company, 98 N.H. 237, 97 A.2d 383; RSA 254:19-23. Consequently, utilities are required to relocate their facilities at their own expense whenever public health, safety or convenience require change to be made. Detroit Edison Co. v. City of Detroit, 332 Mich. 348, 51 N.W.2d 245; Jamaica Water Supply Co. v. New York, 280 App.Div. 834, 114 N.Y.S.2d 79, affirmed 304 N.Y. 917, 110 N.E.2d 739; 12 McQuillin, Municipal Corporations (3rd ed.) §§ 34.74, 34.77. There '* * * has been no dissent from the common law rule as enunciated by numerous courts that, in the absence of a clear statutory mandate shifting the burden to the State, utilities are obliged to relocate at their own expense their facilities located in public highways when required to facilitate highway improvements.' Public Utility Relocation Incident to Highway Improvement, House Document 127, p. 57 (84th Cong. 1st Session 1955). See also, RSA 254:23.

While the obligation to remove or relocate utility facilities is placed on the owner by the common law, the Legislature may change this rule. New York City Tunnel Authority v. Consolidated Edison Co., 295 N.Y. 467, 68 N.E.2d 445. This principle was expressed in the recent Opinion of the Justices, Me., 132 A.2d 440 as follows: '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.' The common-law rule which places the costs of relocating utility facilities on the owner 'specifically admits of legislative change.' Relocation of Public Utilities Due to Highway Improvement--An Analysis of Legal Aspects, Highway Research Board Special Report 21, p. 40 (1955). If the Legislature decides to make such a change it would not be a violation of our Constitution, Part II, Article 5th or Part I, Article 10th. Springfield v. Springfield St. Ry. Co., 182 Mass. 41, 64 N.E. 577; Westchester Electric R. Co. v. Westchester County Park Commission, 255 N.Y. 297, 174 N.E. 660. See In re Opinion of the Justices, 88 N.H. 484, 490, 190 A. 425.

New Hampshire Constitution, Part II, Article 6-a reads as follows: '[Use of Certain Revenues Restricted to Highways.] All revenue in excess of the necessary cost of collection and administration accruing...