State Through Dept. of Highways v. Southwestern Elec. Power Co.
| Decision Date | 02 February 1961 |
| Docket Number | No. 9387,9387 |
| Citation | 127 So.2d 309 |
| Parties | STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. SOUTHWESTERN ELECTRIC POWER COMPANY, Defendant-Appellee, Shreveport Transit Company, Inc., Intervenor-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
D. Ross Banister, Philip K. Jones, George W. Lester, Thomas A. Warner, Jr., Baton Rouge, for appellant.
Wilkinson, Lewis, Madison & Woods, Shreveport, for defendant-appellee.
Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for intervenor-appellee.
Before HARDY, GLADNEY and AYERS, JJ.
This action, instituted by the Department of Highways of the State of Louisiana, a corporation created under and by virtue of the laws of the said State, originally sought injunctive relief prohibiting the defendant, Southwestern Electric Power Company, from interfering with the operations of plaintiff with respect to the construction of Louisiana Interstate Highway I--20, and further requiring defendant to remove and relocate its installations existing upon the streets in the City of Shreveport embraced within said highway project. Since institution of the suit certain changes have occurred. Shreveport Transit Company, Inc., by petition of intervention, has been recognized as an additional party defendant. The original action for injunctive relief has been abandoned, in view of the agreement of defendants to perform the actual work and operations attendant upon the removal and relocation of their installations and facilities, and the suit has been converted into an action for a declaratory judgment. In this form plaintiff has prayed for judgment recognizing its right and authority to require and force the defendants, at their cost, to effect the relocation and re-adjustment of their facilities as required by petitioner in connection with the construction of the said highway. After trial there was judgment rejecting the relief sought by plaintiff, from which it prosecutes this appeal.
Reduced to its simplest terms, the question presented is whether the cost of relocation and re-adjustment of defendant's facilities should be borne by defendants, or if they are entitled to reimbursement of such costs by plaintiff.
Most of the material facts involved are established by and comprehended in a stipulation of counsel for the respective parties litigant, which agreement acknowledges the existence, inter alia, of the following facts:
Southwestern Electric Power Company is a public utility engaged in the business of generating, transmitting and distributing electric energy to consumers in an area including the City of Shreveport; is subject to the jurisdiction of the Louisiana Public Service Commission and operates by virtue of its ownership of a franchise from the City of Shreveport granting the right to operate and maintain an electric transmission system in and along the streets, alleys, avenues and sidewalks of said city. Reference to documents attached to the stipulation in this connection evidences the fact that, without compulsion on the part of the City, Southwestern entered into a contract with said municipality effective October 1, 1944, under which it voluntarily agreed to pay the city a sum of money equal to two per cent of its gross receipts from the sale of electric energy for residential and commercial purposes within the limits of the City of Shreveport, the total amounts of said payments, since the 1944 franchise amendment, having exceeded one and a quarter million dollars.
Shreveport Transit Company, Inc. is also a public utility corporation engaged in the operation of trolley and gasoline bus lines for the transportation of passengers over regularly scheduled routes in the City of Shreveport under the terms of a franchise granted by the City in the year 1957, the provisions of which franchise require the fixing of rates upon the basis of an operating ratio of revenues derived therefrom.
The City of Shreveport maintains and operates a water and sewerage system in a proprietary capacity, and, by agreement with plaintiff Highway Department, the said municipality is to be reimbursed for the cost incurred in connection with its relocation of facilities and installations in the construction of the Interstate Highway.
The Department of Highways of the State of Louisiana is a political corporation created under the laws of the State and possessing such powers as have been granted thereto. Presently the Highway Department is engaged in the construction of Louisiana Interstate Highway I--20, which construction has been undertaken by the State as a Federal-Aid project in co-operation with the United States Government. This Federal Expressway is a New highway and is superimposed over and constructed upon streets of the City of Shreveport; it is not a project for the renovation, widening or other use of existing city streets but is a completely new construction utilizing areas other than those presently used as existing streets in the City of Shreveport.
Under the provisions of Federal Statutes, Federal funds may be used for payment of the cost of relocation of utility facilities to the extent of ninety per cent thereof unless such payment violates the law of the State or a legal contract existing between the utility company and the State prohibiting such reimbursement. In the instant case there is no contention as to the existence of any such contract. The argument as to the constitutional prohibition is later considered in this opinion.
The construction of the Interstate Highway involved requires its passage over, under and across many of the existing streets and alleys of the City of Shreveport and requires the adjustment or relocation of defendant's facilities within the rights of way which have been acquired or are being used in the highway construction.
Plaintiff has made no attempt to acquire from defendants, by expropriation, purchase or otherwise, any of the rights granted and held under the existing franchises from the City of Shreveport. The said municipality, according to the testimony of the Mayor taken on trial of the case, has, in effect, refused to make any demand upon defendants for the removal or relocation of their facilities as presently existing in and along the streets, alleys and sidewalks of the said city.
It was further established by testimony on trial that the cost of the work to be performed by defendants in meeting plaintiff's requirements will represent expenditures, within the limits of the City of Shreveport alone, in the sum of approximately $125,000 to $150,000 by Southwestern, and approximately $50,000 by Shreveport Transit.
Numerous assignments of error are advanced by distinguished counsel for plaintiff, but we think the controlling issues presented by this appeal may be reduced to a determination of the following questions:
(1). Is the plaintiff vested with the right to exercise the police power of the State?
(2). Does the present action seeking to impose the cost of operations required by plaintiff constitute a valid exercise of the police power?
Proceeding to a discussion of these issues in the order stated, we have seriously considered counsel's argument that the Department of Highways is vested with the right to exercise the police power of the State under the authority of Article VI, Sections 19 and 19.1 of the Constitution of the State of Louisiana, LSA, and under LSA-R.S. 32:2, subd. A and 48:26.
Counsel urgently argues that Section 19 of Article VI of the Constitution providing for the establishment and maintenance of a system of State highways and authorizing '* * * the acquisition, by expropriation or otherwise, of rights of way * * *' justifies the interpretation that the right to use the police power of the sovereign State of Louisiana has been conferred upon or delegated to the plaintiff as a governmental agency. In our opinion that sought-for construction would require the application of the wildest sort of speculation and conjecture as to a constitutional intent and purpose completely unjustified by the verbiage upon which reliance is placed. In the absence of a more specific definition of terms, we cannot conclude that the mere use of the word 'otherwise' justifies, even by implication, the taking of property by exercise of the police power. In our opinion the reasonable construction of the word would simply indicate the recognition of conventional agreements such as donations or purchases.
We attempted to point out in our opinion in Arkansas Louisiana Gas Company v. Louisiana Department of Highways, 104 So.2d 204 (writs denied) that the use and exercise of the police power must be carefully guarded and is not subject to improper use under the guise of the protection of the public.
Nor can we find any support for the same contention in the provisions of Section 19.1 of Article VI, particularly paragraphs (7) and (10), to which counsel calls special attention. Examination of the entire article, and specifically the paragraphs enumerated, justifies only the conclusion that the general control, supervision and authority for construction, maintenance and improvement of State highways and bridges and the regulation of traffic thereon is vested in the established departmental agency. Such authority is far removed and not to be compared with the exercise of the police power which can, in response to urgent needs, be used even for uncompensated destruction of private property.
The cited statutory provisions add nothing to the extent of plaintiff's authority, but we do find in LSA-R.S. 32:2, subd. A the only reference to the exercise of police power, and for that reason we quote such section in its entirety, as follows:
'The department shall supervise and regulate all traffic on the public highways of this state; enforce the provisions of this Chapter; promulgate rules and regulations not...
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