State Road Comn. of Utah v. Utah Power and Light Co. Co.

• Decision Date: 26 May 1960
• Docket Number: No. 9136,9136
• Citation: 353 P.2d 171,10 Utah 2d 333
• Court: Utah Supreme Court
• Parties: d 333 STATE ROAD COMMISSION OF UTAH, Plaintiff and Appellant, v. UTAH POWER & LIGHT COMPANY, a corporation, Mountain Fuel Supply Company, a corporation, and The Mountain States Telephone and Telegraph Company, a corporation, Defendants and Respondents.

Page 171

353 P.2d 171

10 Utah 2d 333

STATE ROAD COMMISSION OF UTAH, Plaintiff and Appellant, v. UTAH POWER & LIGHT COMPANY, a corporation, Mountain Fuel Supply Company, a corporation, and The Mountain States Telephone and Telegraph Company a corporation, Defendants and Respondents.

No. 9136.

Supreme Court of Utah.

May 26, 1960.

Walter L. Budge, Atty. Gen., of Utah, Franklyn B. Matheson, Robert S. Campbell, Jr., Assts. Atty. Gen., Merlin R. Lybbert, Robert Porter, Jr., Salt Lake City, for appellant.

Gerald Irvine, S. G. Baucom, B. Z. Kastler, Jr., Calvin L. Rampton, Salt Lake

City, Sam Cline, Milford, S. N. Cornwall, Salt Lake City, Luis R. Rovira, Denver, Colo., for respondent.

HARDING, District Judge.

State Road Commission of Utah filed an action under the declaratory judgment act to determine the validity of Chapter 53 of the 1957 Session Laws of Utah, now Section 27-2-7, Subsection (22), Utah Code Annotated, 1953, commonly known as the Utility Relocation Act. Summary judgment was rendered in favor of the defendants, holding the Utility Relocation Act to be valid, and ordered the State Road Commission to reimburse the defendant utility companies for the non-betterment costs of the relocation of their facilities. This appeal is taken from the judgment.

The complaint alleged in substance that franchises which are still in full force and effect had been granted by the proper governmental authorities to the defendant utility companies to locate their utility facilities on public roads and streets (the franchises are silent as to any removal or relocation of the facilities); that the facilities had been placed in pursuance of the franchises; that thereafter portions of such roads and streets had been designated as federal aid highways which required the removal and relocation of the facilities; that the defendants had demanded that the plaintiff State Road Commission pay the relocation costs as provided by the aforementioned Utility Relocation Act, which had become effective prior to the time demand for removal and relocation had been made, and the plaintiff contends it cannot legally pay such costs, asserting the unconstitutionality of the Act.

The pertinent part of Section 27-2-7, U.C.A.1953, as amended by Chapter 53, Laws of Utah, 1957, involved in this controversy is as follows:

'(22) (a) To make reasonable regulations for the installation, construction, maintenance, repair, renewal and relocation of all facilities and drainage and irrigation systems (herein called 'facilities') of any utility in, on, along, over, across, through, or under any project on the federal-aid primary or secondary systems of highways as the same now are or may hereafter be defined by Act of Congress, or on the interstate system, as herein defined, including extensions thereof within urban areas. Whenever the commission shall determine 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 interstate system, including extensions thereof within urban areas, should be relocated, the utility or political subdivision owning or operating such facilities shall relocate the same in accordance with the order of the commission; provided, however, that the cost of relocation in connection with the highway systems as defined in this paragraph, shall be paid by the commission in all cases where proportionate reimbursement of such cost may be obtained by the state of Utah from the United States pursuant to the Federal-Aid Highway Act of 1956. In case of any such relocation of facilities, as aforesaid, the utility or political subdivision owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location or locations.

'(b) For the purposes of this section, the term 'utility' shall include privately, cooperatively and publicly owned utilities, including drainage and irrigation systems and utilities owned by all political subdivisions.

'(c) 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.

'(d) '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.

'(e) The cost of relocating utility facilities in connection with any project on the federal-aid primary or secondary systems or on the interstate system is hereby declared to be a cost of highway construction.'

The provisions of the Utah Constitution with which the above act are claimed to be in conflict are:

Article VI, Section 27. 'The Legislature shall have no power to release or extinguish, in whole or in part, the indebtedness, liability or obligation of any corporation or person to the State, or to any municipal corporation therein.'

Article VI, Section 31. 'The Legislature shall not authorize the State, or any county, city, town, township, district or other political subdivision of the State to lend its credit or subscribe to stock or bonds in aid of any railroad, telegraph or other private individual or corporate enterprise or undertaking.'

It is to be conceded that the common law required utilities to pay the entire cost of removing and relocating any facilities located within the right-of-way of a public highway whenever the necessities of highway improvement so demanded. New Orleans Gaslight Co. v. Drainage Comm. of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831.

In view of the foregoing constitutional provisions and the rule of the common law, the question to be answered is whether or not the legislature has the power to modify the common law, prospectively, lifting a burden from the utilities and imposing it on the State. This question in whole or in part has been before the highest courts of twelve states in the following cases:

State ex rel. Rich v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596; Opinion of the Justices, 152 Me. 449, 132 A.2d 440; Baltimore Gas & Electric Co. v. State Roads Comm., 214 Md. 266, 134 A.2d 312; Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642; Opinion of the Justices, 101 N.H. 527, 132 A.2d 613; Wilson v. City of Long Branch, 27 N.J. 360, 142 A.2d 837; State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007; Lehigh Valley R. Co. v. Canal Board, 204 N.Y. 471, 97 N.E. 964; New York City Tunnel Authority v. Consolidated Edison Co., 295 N.Y. 467, 68 N.E.2d 445; Oswego & Syracuse R. Co. v. State, 226 N.Y. 351, 124 N.E. 8; Transit Commission v. Long Island R. Co., 253 N.Y. 345, 171 N.E. 565; Westchester Electric R. Co. v. Westchester County Park Comm., 255 N.Y. 297, 174 N.E. 660; Northwestern Bell Telephone Co. v. Wentz, N.D., 103 N.W.2d 245; Delaware River Port Authority v. Pennsylvania Public Utility Comm., 393 Pa. 639, 145 A.2d 172; State v. Southern Bell Tel. & Tel. Co., Tenn., 319 S.W.2d 90; State v. City of Austin (State v. City of Dallas et al.), Tex., 331 S.W.2d 737.

As so often happens, there is respectable authority on both sides of the question. The numerical weight of authority holds that under constitutional limitations similar to those in Utah the Legislature has the power to change the common law to relieve the utilities of the obligation to pay the cost of relocating facilities and to impose that cost on the state. Justice Cardozo's opinion in Oswego & Syracuse R. Co. v. State, supra, at page 356 of 226 N.Y., at page 10 of 124 N.E., is expressive of the holding of the majority:

'At the threshold stands a question of constitutional power. 'Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking.' (Constitution, art. 8 sec. 9.) The state finds in this command a barrier to reimbursement. In the case of the Lehigh Valley Railroad Company, the same barrier was interposed. * * * The court found it unreal. We did not deny the power of the legislature in the improvement of navigation to tear down bridges and other obstructions without requital for resulting loss. * * * We held, however, that the Legislature did not violate the Constitution in refusing to exert the full measure of its might. Mere gifts and benevolences in aid of private undertakings, the Constitution does prohibit. * * * It does not prohibit the recognition of claims which have their roots in equity and justice. * * * This is not a case where the legislature, after building the canal, has voted compensation retrospectively for the expenses of a private undertaking. We say that to exclude a problem, and not to suggest its answer. This is a case where the legislature, by action looking to the future, has defined the terms of equity and justice upon which it will go into an enterprise. In fixing these conditions, the legislature has a wide discretion. * * * Courts will not revise its judgment unless there has been manifest abuse * * *

'This case is governed, therefore, by our decision in that of the Lehigh Valley Railroad so far as the facts of the two cases are the same. The state finds a distinction between them in the terms of the claimant's permit. In the earlier case there was an implied reservation by the state of the right to destroy the bridge in the improvement of navigation * * * In this case the reservation was express. We think the difference is unsubstantial. The power of the state is not changed by the form of reservation. Even though no permit had been granted, the duty of the railroad would be the same. The equity of its position is not destroyed by its promise to obey the...