State ex rel. City of Albuquerque v. Lavender

• Decision Date: 13 July 1961
• Docket Number: No. 6780,6780
• Citation: 69 N.M. 220,1961 NMSC 96,365 P.2d 652
• Parties: STATE of New Mexico, ex rel. CITY OF ALBUQUERQUE, Relator, v. George LAVENDER, Chairman, John F. Sudderth, Vice Chairman, J. R. Kastler, Secretary, Frank Tatsch, H. E. Leonard, Members of the State Highway commission of the State of New Mexico; State Highway Commission of New Mexico; and D. B. Dixon, Chief Highway Engineer of State Highway Commission of New Mexico, Respondents.
• Court: New Mexico Supreme Court

Page 652

365 P.2d 652

69 N.M. 220

STATE of New Mexico, ex rel. CITY OF ALBUQUERQUE, Relator, v. George LAVENDER, Chairman, John F. Sudderth, Vice Chairman,

J. R. Kastler, Secretary, Frank Tatsch, H. E. Leonard,

Members of the State Highway commission of the State of New

Mexico; State Highway Commission of New Mexico; and D. B.

Dixon, Chief Highway Engineer of State Highway Commission of

New Mexico, Respondents.

No. 6780.

Supreme Court of New Mexico.

July 13, 1961.

Rehearing Denied Nov. 3, 1961.

Frank Horan, Malcolm W. deVesty, James L. Parmelee, Jr., Stanley P. Zuris, Albuquerque, for relator.

Fred M. Standley, Handley Kelsey, Joseph L. Droege, John C. Worden, Sp. Asst. Attys. Gen., Thomas O. Olson, First Asst. Atty. Gen., for respondents.

John E. Hall, Albuquerque, amicus curiae.

CARMODY, Justice.

This is an original proceeding in mandamus, in which the city of Albuquerque seeks to require the state highway commission to reimburse it for relocations of water and sewer lines, made necessary by reason of the construction of federal-aid highways on the interstate and primary system.

The parties will be referred to hereafter as the 'city' and the 'commission,' respectively.

In 1957, the New Mexico legislature enacted Chapter 237, Laws of 1957, amending Sec. 55-7-18, N.M.S.A., 1953, and which provided for reimbursement to public utilities for the relocation of their facilities. Portions of this chapter were adjudged unconstitutional in State Highway Commission v. Southern Union Gas Co., 1958, 65 N.M. 84, 332 P.2d 1007. However, in that case, the court declined to rule as to whether the city of Albuquerque was entitled to repayment of relocation costs which it had by reason of moving municipally owned facilities from its municipally owned right-of-way. Actually, by reason of this reservation in the above case, and additionally by reason of the enactment of Chapters 289 and 310 of the Laws of 1959 (Secs. 55-7-21 through 55-7-29, N.M.S.A., 1953 Supp.), the city is seeking its relief.

Chapter 310, Laws of 1959, was enacted by the legislature in what was apparently an attempt to satisfy the constitutional objections announced in the Southern Union case, and a more detailed discussion of the statute will be attempted hereinafter.

The commission's return to the alternative writ seeks to justify its refusal to comply with the statutes, on the basis that it claims that there is a violation of art. IX, Sec. 14, of the New Mexico Constitution, and the additional contention that the city has no property or property interest which can be compensated under art. II, Sec. 20, of the New Mexico Constitution.

Although the city urges in three separate grounds its contention as to why the statutes referred to are constitutional, the contention can be summarized that municipalities are vastly different from private utilities, and therefore should be treated differently because of the public services rendered by them, and that a municipality is an arm of the state. Thus, the city attempts to circumvent the Southern Union holding, and both parties in their briefs deal, basically, only with the effect of the statutes on a municipality.

Without discussing the question as to the claimed differences between public and private utilities at any great length, we are of the opinion that the operation of water and sewer systems is a proprietary function of a municipality, not a governmental function, and therefore must stand on the same footing as privately owned utility facilities. We feel that State ex rel. Highway Comm. v. Town of Grants, 1960, 66 N.M. 355, 348 P.2d 274, answers this question, and that there is no necessity in considering the matter further, although we are cognizant that the city seeks to avoid the implication of the Grants case, but we are not impressed with this argument. We are cognizant also that Sec. 2, subd. A of Chapter 310, defining 'utility,' states that:

'A. the term 'utility' shall mean and include publicly, privately and cooperatively owned utilities, without distinction, for the rendition of water, electric power, sanitary sewer, storm sewer, steam, fuel gas, telephone or telegraph service through a system of pipes or wires devoted to public utility service.' (Emphasis added.)

Thus, if the statute is unconstitutional at all, it is unconstitutional as to municipalities operating utilities in a proprietary capacity, just as it is to a private utility. We can see no other possible construction of the language of art. IX, Sec. 14, New Mexico Constitution, wherein the words 'public or private corporation' are used. See, also, McQuillin, vol. 1, Sec. 2.03, at 448, 449 and 450.

As above stated, the city in its brief argues the limited question as to the difference between a municipally owned utility and a privately owned utility, insofar as the constitutionality of the statute is concerned. The commission by its brief answers this proposition, and by a general statement only, claims that the statute is unconstitutional under the Southern Union case. The court is referred by counsel to the briefs in the Southern Union case as though this were dispositive of all contentions, and, impliedly at least, that the 1959 legislation is identical with the 1957 legislation. In any event, in view of our determination that there is no practical difference between municipally owned utilities and those privately owned, it therefore becomes necessary to dispose of the constitutionality of the statute, even though the point is not directly raised and is certainly not in any sense properly or adequately briefed.

In declaring certain portions of the 1957 Act unconstitutional, the court made the following statement:

"Here the legislature has not authorized the State Highway Commission to expend public funds for such relocation purpose but has directed the paying over of such funds to the Southern Union Gas Company, not under the control of the Highway Commission or the state, to be used by the Southern Union Gas Company in discharging an obligation assumed by it, thereby relieving it of the expenditure of its own funds to the extent of the aid advanced by the state." [65 N.M. 84, 332 P.2d 1012.]

The legislature attempted at least to get around this particular statement by including certain protective provisions in the 1959 Act (Chapter 310) as follows:

Section 3. Relocation Of Utility Facilities Authorized.----

'A. The commission may, after notice and hearing, by order provide for the relocation of utility facilities within a public highway (including, if required, the entire removal therefrom of certain facilities except as necessary to serve abutting premises or as necessary to cross the highway) and may require any utility to make or suffer any such specified relocation, upon a finding that the action provided for is necessitated by highway improvement determined upon by the commission as a matter of policy relating to the design, construction, location and maintenance of public highways; and the commission shall direct and control the reasonable manner and time of effecting any such relocation so as to promote the public interest in the highway improvement without undue cost or risk and without impairment of utility service, whether the commission undertakes the relocation on behalf of the state or requires the utility to perform such relocation. If undertaken by the commission, it may contract such relocation work.

'B. The obligation of the utility shall be to make or suffer relocation as so required by the commission, and to do so cooperatively and in the reasonable manner and time as may be prescribed by the commission, and to advance and pay all costs incurred in effecting reloction which the state is not authorized to pay hereunder or otherwise by law. It shall not be grounds for delay in relocation that a dispute exists over the cost of relocation or the method of paying or sharing same.

'C. The commission is authorized to enter into an agreement with a utility with respect to any relocation, the time and manner of its accomplishment and the payment and sharing of the cost incurred in effecting relocation, all upon such reasonable terms and conditions as the commission shall approve as necessary or appropriate in the interest of a public highway program in this state; and in such event no notice, hearing or other proceedings under this act shall be required.

'Section 4. State Pays Certain Relocation Costs.----

'A. In the following types of utility relocation ordered by the commission pursuant to section 3A it shall either, as it elects, undertake the relocation work on behalf of the state, paying the cost of relocation, or reimburse the utility for the cost of relocation:

'(1) relocations necessitated by improvements of public highways in the interstate system, including extensions thereof within urban areas; and

'(2) relocations by complete removal and construction of facilities off the public highway.

'The commission is authorized upon notice and opportunity for hearing to find and determine in relocations hereunder the cost of relocation, and the same shall, to the extent authorized herein, be borne by the state as other highway construction costs.

'The commission is authorized to make rules and regulations with respect to the advancements and/or payment from time to time of funds by utilities to insure that the state shall never advance nor pay any costs which it is not authorized by law to pay, including rules and regulation [sic] with respect to the proper determination of cost of relocation payable or reimbursible by the state, to aid the commission in carrying out the intention of this act; and this [sic] provisions shall be cumulative of other authority possessed by the commission to promulgate rules and regulations.

'B. Exceptions

'(1) The cost of relocation from which a utility would be otherwise relieved pursuant to sub-paragraph A(1) above shall nevertheless be borne in full by the...