State ex rel. Rich v. Idaho Power Co.

Decision Date02 October 1959
Docket NumberNo. 8739,8739
Citation81 Idaho 487,346 P.2d 596
Parties, 32 P.U.R.3d 75 STATE of Idaho on relation of Roscoe C. RICH, Leonard K. Floan and David P. Jones, Idaho Board of Highway Directors, Plaintiff-Appellant, v. IDAHO POWER COMPANY, a corporation, and The Mountain States Telephone and Telegraph Company, a corporation, Defendants-Respondents.
CourtIdaho Supreme Court

Frank L. Benson, Atty. Gen., and William Padgett, Special Asst. Atty. Gen. (Graydon W. Smith, former Atty. Gen., and Allan G. Shepard, former Special Asst. Atty. Gen., on the brief), for appellant.

Parry, Robertson & Daly, Twin Falls, and A. C. Inman and James E. Bruce, Boise, for respondent Idaho Power Co.

Carey H. Nixon, Boise, Luis D. Rovira and Akolt, Turnquist, Shepherd & Dick, Denver, Colo., for respondent Mountain States Telephone and Telegraph Co.

Tom F. Alworth, Filer, Ray W. Rigby, Rexburg, and C. H. Higer, Emmett, amici curiae.

SMITH, Justice.

This is a declaratory judgment action brought by appellant (plaintiff) State of Idaho on relation of its Board of Highway Directors against respondents (defendants) Idaho Power Company and The Mountain States Telephone and Telegraph Company to determine the constitutionality of certain provisions of I.C. § 40-120 as amended by Idaho Sess.Laws 1957, ch. 227, providing that utilities shall be reimbursed out of the dedicated State Highway Fund for costs of relocating their utility facilities located on any federal-aid primary or secondary system or on the inter-state system of Idaho's public highways, when determined necessary by the Idaho Board of Highway Directors (hereinafter referred to as the Board).

Appellant designated for reconstruction a portion of U. S. Highway 20-26 as reconstruction Project No. F-2351(2) located in the City of Gooding, Gooding County, for inclusion within the federal-aid primary system of highways in this State.

Each respondent is a public utility corporation, organized for profit and qualified to do business in this State. Respondent Idaho Power Company furnishes electrical energy to the public and respondent The Mountain States Telephone and Telegraph Company furnishes telephone and telegraphic communication services to the public. Both are utilities as defined by I.C. § 40-120. The utility facilities of each consist of poles, wires, cables, conduits and similar equipment, constructed, owned and maintained since prior to 1957 in and upon the right-of-way of the portion of the highway included in reconstruction.

The Board, after a hearing duly noticed and as provided by I.C. § 40-120, rendered its decision determining that the contemplated highway reconstruction required relocation of respondents' facilities, and requiring respondents to remove the facilities from the highway right-of-way located in Gooding, and to relocate them in a manner as not to interfere with the reconstruction project. Respondents demanded reimbursement of their costs of relocating the facilities which appellant refused.

Respondents having answered, the parties entered into stipulations framing the issue of the constitutionality of the questioned portions of I.C. § 40-120.

The district court, on hearing the matter, found the facts essentially as herein set forth, and concluded in favor of the validity of I.C. § 40-120 in the particulars under consideration here. The court thereupon entered its judgment adjudging the statute to be valid and constitutional, and that respondents are entitled to recover out of the State Highway Fund their costs incurred in relocating their facilities. Appellant appeals from the judgment.

Appellant's assignments of error present the single issue of law, i. e., the constitutionality of that portion of I.C. § 40-120(27), which provides that appellant pay, out of the State Highway Fund, the cost of relocating the utility facilities.

The relevant portions of I.C. § 40-120, as amended by Idaho Sess.Laws 1957, ch. 227, necessary to be considered, read as follows '40-120. Duties and powers of the board.--The Idaho board of highway directors, subject to the right of protest hereinafter provided for, shall be vested with the functions, powers and duties relating to the administration of this act and shall have power to:

* * *

* * *

'(27) Make 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 the federal-aid primary or secondary systems or on the interstate system, including extensions thereof within urban areas. Whenever the board shall determine, after notice and opportunity for hearing, 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 or secondary system or on the inter-state system, including extensions thereof within urban areas, shall be relocated, the utility owning or operating such facilities shall relocate the same in accordance with the order of the board, and the cost of such relocation shall be a part of the cost of the acquisition of rights-of-way, easements and other rights for and the construction, maintenance, repair, improvement and development of the public highways in the highway system included in any project on the federal-aid primary or secondary systems or on the inter-state system, and shall be paid by the state of Idaho out of the state highway fund. In case of any such relocation of facilities, as aforesaid, the utility owning or operating the same, its successors or assigns, may thereafter maintain and operate such facilities, with the necessary appurtenances, in the new location or new locations.

'For the purposes of this subsection the following definitions shall be applied:

* * *

* * *

'(b) Cost of relocation defined.--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/or any salvage value derived from the old facility.' (Emphasis supplied.)

The issue pinpointed is, whether the emphasized portions of I.C. § 40-120 are unconstitutional and therefore invalid.

Appellant, represented by the special assistant attorneys general, contends, First, that the referred to provisions of the statute are in contravention of Idaho Const. Art. 8, § 2, which in part reads:

'The credit of the state shall not, in any manner, be given, or loaned to, or in aid of any individual, association, municipality or corporation; * * *.'

and Second, that highway user funds cannot be expended for the relocation of utility facilities within the purview of Idaho Const. Art. 7, § 17, which reads:

'On and after July 1, 1941 the proceeds from the imposition of any tax on gasoline and like motor vehicle fuels sold or used to propel motor vehicles upon the highways of this state and from any tax or fee for the registration of motor vehicles, in excess of the necessary costs of collection and administration and any refund or credits authorized by law, shall be used exclusively for the construction, repair, maintenance and traffic supervision of the public highways of this state and the payment of the interest and principal of obligations incurred for said purposes; and no part of such revenues shall, by transfer of funds or otherwise, be diverted to any other purposes whatsoever.' (Emphasis supplied.)

The present Attorney General in his argument emphasized that he was in agreement with respondents' position, that the costs of relocation should be paid by highway users 'at the gasoline pumps,' contra to that of appellant.

Appellant, in support of its argument that the legislation is in violation of Idaho Const. Art. 8, § 2, (giving or loaning the credit of the state), advances the premise that if the legislature, without constitutional sanction, may change the common law rule that a utility must pay the cost of relocation of its facilities placed upon public thoroughfares, then the legislature may create, retrospectively, a property right in a utility where none existed at the time of the installation of the facilities; and if so, the legislature thereby may decrease the quantum of ownership of the public in the public thoroughfares and give away the property of the public which the state holds in trust.

Appellant's contention that respondents have not and cannot acquire any property rights within the right-of-way of a public thoroughfare requires examination of Idaho Const. Art. 11, § 13, cited by respondents, which reads:

'Telegraph and telephone companies.--Any association or corporation, or the lessees or managers thereof, organized for the purpose, or any individual, shall have the right to construct and maintain lines of telegraph or telephone within this state, and connect the same with other lines; and the legislature shall by general law of uniform operation provide reasonable regulations to give full effect to this section.'

The legislature in providing 'reasonable regulations', referred to in the above quoted section of the Constitution, as it relates to the construction and maintenance of telegraph and telephone lines, enacted Revised Statutes, 1887, § 2700, now I.C. § 62-701, which reads:

'Rights to use highways.--Telegraph and telephone corporations may construct lines of telegraph or telephone along and upon any public road or highway, along or across any of the waters or lands within this state, and may erect poles, posts, piers or abutments for supporting the insulators, wires and other necessary fixtures of their lines in such manner and at such points as not to incommode the public use of the road or highway, * * *.' (Emphasis supplied.)

The legislature in 1903 granted similar rights to...

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