State Ex Rel. Rich v. Idaho Power Co.

346 P.2d 596, 81 Idaho 487, 1959 Ida. LEXIS 244

• Court: Idaho Supreme Court
• Decided: October 2, 1959
• Docket: 8739
• Status: Published

Opinions

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 he 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:

Jfí % ífc

“(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 :

• * * * * * Hit

“(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 electric power companies, Idaho Sess.Laws 1903, § 1, p. 343, amended Laws 1945, ch. 37, § 1, p. 48, now I.C. § 62-705, which reads:

“Rights of way for electric power companies and the United States of America or any agency thereof. — Any person, company or corporation incorporated or that may hereinafter be incorporated under the laws of this state or of any state or territory of the United States, and doing business in this state, the United States of America or any agency thereof, for the purpose of supplying, transmitting, delivering or furnishing electric power or electric energy by wires, cables or any other method or means, shall have and is hereby given the right to erect, construct, maintain and operate all necessary Unas upon, along and over any and all public roads, streets and highways, * * * together with poles, piers, arms, cross-arms, wires, supports, structures and fixtures for the purposes aforesaid, or either of them, in such manner and at such places as not to incommode the public use of the road, highway, street or railroad, or to interrupt navigation of water, together with the right to erect, construct, maintain and operate upon said electric power line a telephone line to be used only in connection with the said electric energy and power line, * * (Emphasis supplied.)

It is to be noted that the legislature specifically limited the use, by telegraph, telephone and electric power companies, of the public roads, streets and highways of this state “as not to incommode the public use” thereof. I.C. §§ 62-701 and 62-705. By so limiting the use by utilities of the public thoroughfares the legislature, acting under the directive of the Constitution, Art. 11, § 13, intended a permissive use only; such is implicit in the legislation. Nor does the restriction pertain to the facilities in praesenti only, i. e., as of the time when placed in and upon the public thoroughfares. Not being so limited the restriction has application in futuro. In any case where the facilities incommode the public use of any highway, the people, under the Constitution and the legislative enactment, reserve the right to require the utilities to relocate their facilities so as not to incommode such public use. Utilities place facilities thereon under such constitutional and legislative restriction with full knowledge of such limitation. It follows that the right of utilities to the use of public thoroughfares is not and cannot be regarded as a permanent property right.

The permissive use of public highways, which the legislature by I.C. §§ 62-701 and 62-705 accords to utilities, is in recognition of the time honored rule existing in this state, that streets and highways belong to the public and are held by the governmental bodies and political subdivisions of the state in trust for use by the public, and that only a permissive right to their use, and no permanent property right, can be gained by those using them. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681; Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173. This Court in Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475, held this rule applicable to a water utility in the placing of its facilities in and upon the public streets of a village.

In the exercise of its powers and duties with respect to the state highway system including streets designated a part thereof, the Department of Highways acts as agent of the state. In discharging a mandatory duty imposed by the state, such department performs a governmental function, I.C. §§ 40-106 and 40-111; Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; Youmans v. Thornton, 31 Idaho 10, 13, 168 P. 1141; within the police power reserved by this state, Sandpoint Water & Light Co. v. City, of Sandpoint, 31 Idaho 498, 173 P. 972, L.R.A. 1918F, 1106; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P. 2d 681.

New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 473, 49 L.Ed. 831, construed the nature of the right of the Gaslight Company to the use, for laying its pipelines, of the streets of New Orleans, as permissive only; and therein the Court denied to the utility the right of recovery of the costs of relocation of its facilities since the state in the exercise of its police power could require changes in location thereof when necessary for public use in the interest of the public health, welfare and safety. We quote from that decision:

“In the very terms of the grant there is a recognition that the use of the streets by the gas company was to be in such manner as to least inconvenience the city in the use thereof. Except that the privilege was conferred to use the streets in laying the pipes in some places thereunder, there was nothing in the terms of the grant to indicate the intention of the state to give up its control of the public streets, — certainly not so far as such power might be required by proper regulations to control their use for legitimate purposes connected with the public health and safety. * * *

* * * * *

“ * * * The police power, in so far as its exercise is essential to the health of the community, * * * cannot be contracted away. * * *

The gas company did not acquire any specific location in the streets; * * * and when it located its pipes it was at the risk that they might be, at some future time, disturbed, when the state might require for a necessary public use that changes in location be made.

“ * * * We think whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such future regulations as might be required in the interest of the public health and welfare. * * * The gas company, by its grant from the city, acquired no exclusive right to the location of its pipes in the streets, as chosen by it, under a general grant of authority to use the streets. The city made no contract that the gas company should not be disturbed in the location chosen. In the exercise of the police power of the state, for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new public work. In complying with this requirement at its own expense, none of the property of the gas company has been taken, and the injury sustained is damnum absque injuria

In Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 139 Pa.Super. 529, 12 A.2d 479, 481, the question was whether the utility was entitled to the cost of relocating its facilities in a public street to make way for highway improvements. Said the Court:

“ * * * a utility by erecting its facilities in a certain place in the highway with the express assent of the public authorities, does not thereby acquire a vested right perpetually to maintain such facilities in that particular location; * *

This case recognized the principle that the political subdivision of the state in requiring the change in location of the telephone company’s facilities, was, by authority of the legislature, exercising police power in the interest of public safety. Continuing, the Court said:

“The public authorities, including the county commissioners, the city and the State Highway Department, in the exercise of a reasonable discretion, determined that it was necessary to change the location of the facilities of the telephone company. This was done in order to meet a public necessity and by virtue of the police power vested in those authorities. * * * the telephone company is not entitled to compensation for the expense of moving the conduit to another location in the same street.”

In Anderson v. Stuarts Draft Water Company, 1955, 197 Va. 36, 87 S.E.2d 756, 757, the Court held:

“Right of state department of highways to change the grade of secondary road to make it safer and more convenient for public travel was superior to rights of water company under pipeline easements granted by owners of underlying fee after right of way for road had been acquired * * *; and hence pipeline must be relocated at expense of water company so as not to obstruct superior right of department of highways to make proposed improvement in grade of road.”

The state and its political subdivisions are without power to make a valid contract permanently alienating any part of the public streets and highways or permitting a permanent encroachment or obstruction thereon limiting the use of the public thoroughfares by the public. Boise City v. Hon, 14 Idaho 272, 94 P. 167; Boise City v. Wilkinson, 16 Idaho 150, 102 P. 148; Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681; Keyses v. City of Boise, 30 Idaho 440, 165 P. 1121, L.R.A.1917F, 1004; Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173; Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475.

No right to the use of streets and highways for private purposes can be acquired by prescription as against the state or its political subdivisions, Yellow Cab Taxi Service v. City of Twin Falls, supra.

Permissive use of a street or highway does not vest in the user a property or contractual right, Keyser v. City of Boise, supra; Boise City v. Sinsel, supra.

The power of the state and its political subdivisions to require removal of a nuisance or obstruction, which in anywise interferes with the public use of streets and highways cannot be questioned. Village of Lapwai v. Alligier, supra.

Long before the adoption of our Constitution, the people adopted the common law as the rule of decision in all cases not otherwise provided by law. Such applicability in our system of judicial interpretation remained unchanged upon adoption of our Constitution, July 3, 1890. Idaho Laws, First Session, 1864, Common Law, § 1, p. 527, now I.C. § 73-116; see also Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351.

Under the common law a utility, placing its facilities along streets and highways, gains no property right and upon demand must move its facilities at its expense. New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 139 Pa.Super. 529, 12 A.2d 479; New Jersey Bell Tel. Co. v. Delaware River Joint Commission, 125 N.J.L. 235, 15 A.2d 221; In re Delaware River Joint Commission, 342 Pa. 119, 19 A.2d 278; Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 145 A.2d 172; Transit Commission v. Long Island R. Co., 253 N.Y. 345, 171 N.E. 565; In re Elimination of Highway Railroad Crossing, 259 App.Div. 141, 18 N.Y.S.2d 613, affirmed In re Lehigh Valley R. Co. and Union Road, 283 N.Y. 687, 28 N.E.2d 409; Southern California Gas Co. v. City of Los Angeles, 50 Cal.2d 713, 329 P.2d 289; Anderson v. Stuarts Draft Water Company, 197 Va. 36, 87 S.E.2d 756; Opinion of the Justices, 152 Me. 449, 132 A.2d 440; State v. Southern Bell Telephone and Telegraph Co., Tenn., 319 S.W.2d 90.

Respondents assert that the common law rule may be abrogated by statute and that the legislature abrogated it by enactment of I.C. § 40-120(27) to provide payment of the costs of relocation out of the State Highway Fund.

Respondents assert that the exercise of the police power of appellant Board of Highway Directors, under I.C. § 40-120 (27), to make reasonable regulations for relocation of utility facilities on federal-aid highway projects, is expressly conditioned on the payment of the relocation costs out of the State Highway Fund as part of the costs of acquisition of rights of way, easements and other rights for the construction, improvement and development of the public highways; and that if the referred to provisions of I.C. § 40-120(27) are held to offend the Constitution then the Board’s power to order relocations would disappear because the legislature by Idaho Sess.Laws 1957, ch. 227, in addition to § 1 amending I.C. § 40-120 to include subsection (27), enacted § 2 declaring the intention of the legislature to be that the provisions of ch. 227 shall control over and supersede conflicting provisions of existing laws and of law enacted at the 34th (1957) session of the legislature.

Respondents then assert that the common law rule requiring uncompensated relocation under the vastly expanded federal-aid highway system of today, becomes unreasonable; that therefore the real question is whether (quoting respondents) “the Idaho Constitution placed the legislature in a position which would prevent it from changing the law not only in accordance with justice and equity but also for compelling economic reasons.”

In our analysis whether the legislature by enactment of I.C. § 40-120(27) effected abrogation of the common law rule, we must apply certain fundamental principles and rules of interpretation. Our starting point is the famous case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, quoting from Chief Justice Marshall:

“The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

In response to respondents’ argument that the referred to statute is enacted in accordance with equity and justice for compelling economic reasons, we adopt the reasoning of State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007, 1016:

“Much has been said concerning the power of the legislature to reimburse the utility on the basis of equity and justice. That the legislature has the power to be equitable and just we may admit, but that power is restricted by the constitution.”

Also we quote from City of Cincinnati v. Harth, 101 Ohio St. 344, 128 N.E. 263, 266, 13 A.L.R. 308:

“It is earnestly urged, in support the legislation here under examination, that it was passed in response to public necessities which have grown up out of the emergencies of existing conditions in the country. But, as we said in State ex rel. Campbell v. Cincinnati Street Ry. Co., supra [97 Ohio St. 283, 119 N.E. 735], the office of a judge is ‘jus dicere non jus dare.’ The duty of the court is to uphold the Constitution, even if that act shall temporarily operate to the hindrance of some beneficial result. The people adopted this very provision [Ohio Const., Art. 8, § 6, prohibiting loaning the credit of political subdivisions of the state in aid of any joint stock company, corporation or association] for the purpose of providing for themselves a safeguard against themselves.” of

Flaska v. State, 51 N.M. 13, 177 P.2d 174, 177, contains the following:

“Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative action, and therefore the courts should never allow a change in public sentiment to influence them in giving a construction to a written Constitution not warranted by the intention of its founders.”

And in Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576, 584, 118 A.L.R. 789, the rule is stated:

“ ‘A written constitution is not only the direct and basic expression of the sovereign will, but it is the absolute rule of action and decision for all departments and offices of government in respect to all matters covered by it, and must control as it is written until it shall be changed by the authority that established it.’ * * * When that sovereign will has been clearly expressed, it is the duty of the courts rigidly to enforce it. It is not the province of the courts to circumvent it because of private notions of justice or because of personal inclinations. * *

See also Village of Heyburn v. Security Savings & Trust Co., 55 Idaho 732, 49 P.2d 258, 266; 11 Am.Jur., Constitutional Law, § 50, p.. 659.

We are aware of the basic rule that, inasmuch as our Constitution is a limitation and not a grant of power, the legislature has plenary power in all matters except those prohibited by the Constitution. Idaho Const. Art. 1, § 21; Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083; Rich v. Williams, 81 Idaho 311, 341 P.2d 432. Expressions of this rule, as it relates to the power of the legislature to change the common law obligation of utilities to pay the cost of relocation of their facilities, recognize that the legislature is powerless in the premises if there is a constitutional limitation upon the exercise of such power. And respondents’ assertion that the legislature may abrogate the common law rule must be so circumscribed. The constitutional limitation upon the exercise of such legislative power is expressed In re Elimination of Highway Railroad Crossing, 259 App.Div. 141, 18 N.Y.S.2d 613, affirmed In re Lehigh Valley R. Co. and Union Road, 283 N.Y. 687, 28 N.E.2d 409, as follows :

“The common-law obligation of a utility to relocate its own structures * * * in connection with a grade crossing * * * program continues until the Constitution■ and statute expressly provide otherwise.” (Emphasis supplied.)

and State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007, 1016, contains the following excellent expression of the rule:

“In reply to the appellee’s contention that the legislature can change the common law to provide for future payment of utility relocation costs, it is beyond question that the common law is subject to change by statute. That such change may not offend the constitution is equally true. Public policy of this state is determined by the legislature but such declarations of policy are restricted by the limitations of our constitution.” (Emphasis supplied.)

And in Boise-Payette Lumber Co. v. Challis Independent School Dist. No. 1, 46 Idaho 403, 268 P. 26, 27, the rule is stated:

“A statute cannot declare a public policy contrary to the Constitution.”

See also O’Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672; Dayton Metropolitan Housing Authority v. Evatt, 143 Ohio St. 10, 53 N.E.2d 896, 152 A.L.R. 223; In re Opinion of the Justices, 324 Mass. 746, 85 N.E.2d 761; Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609, 141 A.L.R. 1136; 11 Am.Jur., Constitutional Law, § 139, p. 813.

State Highway Commission v. Southern Union Gas Co., supra [65 N.M. 84, 332 P.2d 1015], answers the assertion of respondents and the present Attorney General that the relocation costs should be paid “at the gasoline pumps” by those who use the highways, rather than by the users of communication and electric power through rates charged for those services; said the New Mexico Supreme Court:

“The appellee has argued that if these relocation costs were made payable ‘at the gasoline pumps’ the burden would be imposed on those for whose benefit the highway construction was undertaken. We hardly feel that this is a valid argument for the constitutionality of the act but, on the other band, it does point out the distinction between the case at bar and the facts in Baltimore Gas & Electric Co. v. State Roads Commission, 214 Md. 266, 134 A.2d 312, and the facts in the two Walt Whitman Bridge cases, Delaware River Port Authority v. Pennsylvania Public Utility Commission, 180 Pa. Super. 315, 119 A.2d 855, and Delaware River Port Authority v. Pennsylvania Public Utility Commission, 184 Pa.Super. 280, 133 A.2d 853, reversed 393 Pa. 639, 145 A.2d 172. The Maryland case involved a tunnel and the Pennsylvania cases a toll-bridge; both facilities were self-liquidating and in neither instance was there a direct obligation on the state. Those projects were literally being paid ‘at the gasoline pumps’ by the users of the facilities. It is interesting to note that the Supreme Court of Maine in the Opinion of the Justices, 152 Me. 449, 132 A.2d 440, specifically held that relocation costs could be paid but that they •could not be paid ‘at the gasoline •pumps.’ In the instant case, if the payment of the relocation costs is a valid legislative act under our constitution, then the legislature could provide for the payment of such costs nt the gasoline pumps, or it could, in its legislative discretion, provide for payment of such costs from a sales tax on bread and milk.”

A further answer to the argument that relocation costs should be paid by highway users is, that respondents’ permissive use of the highways is for the benefit of the utilities and their subscribers and relocation costs should therefore be paid by them as an incident of such benefit; whereas payment of relocation costs “at the gasoline pumps” by highway users would constitute an exaction for which they receive no benefit.

Respondents contend it is immaterial that the utility facilities are owned by private companies and not by the state, since the utilities are devoted to public use, and thereby the public interest is served; they point to Idaho Const., Art. 11, § 13, and I.C. §§ 62-701 and 62-705 as “expressly permitting public utility corporations to use the public highways for their facilities,” as indicative of public use.

We have pointed out that the referred to section of the Constitution recognizes only the right of telephone and telegraph companies to construct and maintain their lines within this state and to connect them with other lines; and that the legislature, in the “reasonable regulations” contained in said sections of the statute, has not seen fit to grant to any telephone, telegraph or electric power utility any permanent or vested property right in any public right-of-way; on the contrary, the legislature allows permissive use only of the public thoroughfares by utilities for their facilities, and in such manner so as not to incommode the public use of the road, highway or street.

Clearly, the legislature at all times has recognized, and continues to recognize that all roads, streets and highways are held in trust by the state and its political subdivisions for use by the public; also, that the granting by the state or political subdivision of a vested or permanent property right or interest in any public street or highway would not only be violative of such public trust, but would result in diminution of the quantum of ownership of the public in its public thoroughfares; and that so to do would constitute the giving or loaning of the credit of the state to or in aid of an individual, municipality or corporation, violative of Idaho Const. Art. 8, § 2, or a gift of the public property in violation of the implied limitations of the Constitution.

Dayton Metropolitan Housing Authority v. Evatt, 143 Ohio St. 10, 53 N.E.2d 896; 901, 152 A.L.R. 223, contains an exhaustive digest of authorities on the various phases of what constitutes “public use” and, quoting from In re Opinion of the Justices, 211 Mass. 624, 98 N.E. 611, 42 L.R.A.,N.S., 221, the Ohio Court stated:

“1 * * * The dominating design of a statute requiring the use of public funds must be the promotion of public interests and not the furtherance of the advantage of individuals. However beneficial in a general or popular sense it may be that private interests should prosper and thus incidentally serve the public, the expenditure of public money to this end is not justified. Government aid to manufacturing enterprises, the development of water powers and other natural resources by private persons or corporations with public funds, either through loans or by the more indirect method of exemption from taxation or taking of stock, have been universally condemned by courts throughout the country, although often attempted by legislation.’ ”

The ruling of this opinion is summarized in the Court’s syllabus as follows:

“A use of property to the public must be an exclusive use by the public, open to all the people on a basis of equality to such extent as the capacity of the property admits, or by some public or quasi-public agency on behalf of the public, and not simply a use which may incidentally or indirectly promote the public interest or general prosperity of the state and its people.”

See also 73 C.J.S. Public, subhead Public use, p. 279 et seq.

In State v. Parsons, 58 Idaho 787, 80 P.2d 20, 22, this Court held an appropriation, intended to compensate individuals injured through tortious acts of the state’s agents, to be invalid since constituting a gift of public property to private persons for private purposes contrary to implied constitutional limitations; said the Court:

“It is well recognized that the power to levy and collect taxes and the power to appropriate public funds are coexistent and rest upon the same principle. If a tax cannot be levied for a particular purpose, no appropriation of public money can be made for such purpose. Gem Irr. Dist. v. Van Deusen, 31 Idaho 779, 176 P. 887; Mills v. Stewart, 76 Mont. 429, 247 P. 332, 47 A.L.R. 424. It is also well settled that taxes cannot be levied and collected, or an appropriation made, for other than a public purpose or in furtherance of the public welfare, and that any attempt so to do is a violation of the implied limitations of the Constitution.”

And the Court discussed the theory of gratuitous transfer of public property in language as follows:

“ * * * a so-called moral obligation will not sustain an appropriation unless such appropriation be made in furtherance of some public purpose. In San Diego County v. Hammond, 6 Cal.2d 709, 59 P.2d 478, 484, 105 A.L.R. 1155, the court said: ‘It is well settled that in determining whether any appropriation of public funds is to be deemed a gift, “The primary and fundamental subject of inquiry is as to whether the money is to be used for a public or a private purpose. If it is for a public purpose * * * it is not, generally speaking, to be regarded as a gift.” ’ ”

In Fluharty v. Board of Com’rs, 29 Idaho 203, 158 P. 320, 321, this Court held invalid Rev. Code, § 3040. This enactment provided that the board of county commissioners of any county, in which there is a fair association or corporation having for its object the exhibition of livestock and other agricultural products of a county or of the state, may appropriate annually out of the county treasury a sum not exceeding one-half of 1 mill on every dollar of taxable property in the county to assist in defraying the expenses of the fair. The plaintiff attacked the enactment as violative of Idaho Const. Art. 12, § 4. This section of the Constitution in express terms prohibits a county, through its board of county commissioners or by vote of its citizens or otherwise, from making donations to or in aid of any company, corporation or association. The fair association admittedly was organized as a nonprofit association .for the purpose of stimulating, developing and promoting the agricultural and livestock interests of the Northwest. This Court in holding the county appropriation to the fair association to be in violation of the Constitution, Art. 12, § 4, even though it was urged that the “main and chief purpose of such an appropriation was for the promotion of the public interest and welfare,” stated:

“ * * * this association is a private corporation engaged in a private enterprise to which the county in the foregoing constitutional provision is prohibited from making a donation or appropriation. Were such donation or appropriation made, it would place county funds donated or appropriated to such corporation under the control of the corporation and its officers, which funds would be appropriated to, and expended for, other purposes than the legitimate current expenses for the lawful administration of the government of the county, and by individuals not officers of the county or amenable to the laws authorizing the expenditure of public moneys.”

and in conclusion the Court commented:

“We must deal with this question as strictly a judicial one, however clear our convictions are that the purposes sought to be obtained are praiseworthy and beneficial to the public. We cannot for that or any other reason usurp authority which does not belong to us, and by judicial construction make ineffectual a plain constitutional provision, however long innocently violated. Where the Constitution, being the supreme law of the state, forbids an act, no legislative enactment can legalize it. And for this court to do other than to adhere strictly to the provision of the constitution would be an act of judicial lawlessness. Nor will the best and most patriotic intentions make that law which contradicts the principles of the Constitution or contravenes it justifiable.”

See also Atkinson v. Board of Com’rs, 18 Idaho 282, 108 P. 1046, 28 L.R.A.,N.S., 412; School Dist. No. 8 in Twin Falls County v. Twin Falls County Mut. Fire Ins. Co.,. 30 Idaho 400, 164 P. 1174; Harrington v. Atteberry, 21 N.M. 50, 153 P. 1041; Boise Payette Lumber Co. v. Challis Independent School Dist. No. 1, 46 Idaho 403, 268 P. 26. As was said in Mulkey v. Quillian, 213 Ga. 507, 100 S.E.2d 268, 271:

“ * * * the removal and relocation of utility facilities is not a necessary or usual adjunct to the construction of highways. State-aid highways can be and are constructed and maintained, without any utility facilities being located on their rights-of-way. Utility facilities are placed thereon purely for the convenience of the political subdivisions or authorities controlling the utility and serve no useful or desirable-purpose in the construction and maintenance of the highway itself, and serve no convenience of the highway or the Highway Department.”

In re Opinion of the Justices, 324 Mass. 746, 85 N.E.2d 761, 763, construed the constitutionality of a bill intended to provide that subways, tunnels, viaducts, elevated structures and rapid transit extensions constructed by Metropolitan Transit Authority to relieve traffic on the surface of the public thoroughfares, be declared public highways and bridges, and that payment for such structures be provided to be made out of Massachusetts’ constitutionally dedicated highway user funds (Mass. Const., Amend. Art. 78). The Massachusetts Supreme Court in ruling the proposed bill unconstitutional stated:

“The word highway has frequently been employed in our decisions in such a manner as to indicate that it was understood to mean a roadway for persons and vehicles rather than structures erected for the exclusive use of railways. [Citations.] * * *

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* * * The conclusion is irresistible that the people of the Commonwealth in adopting art. 78 of the Amendments [Constitutional Amendments] intended to make sure that the moneys exacted from owners of motor vehicles should be used solely for the purposes of highways and bridges for the use of such vehicles and could not have supposed that the highways referred to in the Amendment would include structures which were adapted exclusively for use by the cars of the Metropolitan Transit Authority and of which motor vehicles could make no use.”

In City of Cincinnati v. Harth, 101 Ohio St. 344, 128 N.E. 263, 264, 13 A.L.R. 308, the Ohio Court forbade payment by a municipality of relocation costs of a utility as violative of a constitutional provision forbidding the loaning of the municipality’s money and credit to a corporation; the Court pointed out that the new construction and new property contemplated to be paid for, as costs of relocation of the facilities by the municipality, nevertheless would constitute property belonging to the utility to be used and dealt with by it in every way as it might deal with and use all its other properties, which would constitute loaning the municipality’s money to the credit of the utility in violation of the constitutional provision. The Court, quoting from Alter v. City of Cincinnati, 56 Ohio St. 47, 46 N.E. 69, 35 L.R.A. 737, said:

“ ‘A city must be the sole proprietor of property in which it invests its public funds and it cannot unite its property with the property of individuals or corporations, so that when united, both together form one property.’”

and continuing the Ohio Court made this significant statement:

“ * * * it is significant that none of the cases cited support the view that in the exercise of police power the state may raise money, by taxing its citizens, and expend or give it to private persons or companies, or that it may disregard the express limitations of the Constitution.”

Several states, including Idaho, have adopted legislation following the enactment, by the Congress of the United States, of the Federal-Aid Highway Act of 1956, 23 U.S.C.A. § 151 et seq.,¹ similar to Idaho Sess.Laws 1957, ch. 227, and particularly I.C. § 40-120(27) relating to the obligation of the state through its state highway department or commission to reimburse utilities for costs of relocating facilities required by widening and improving state highways under federal-aid. Five of those states, New Hampshire, Minnesota, Maine, Tennessee and New Mexico, have construed statutes which, for all practical purposes, are identical to the legislation of our state, I.C. § 40-120(27), under consideration here.

In Opinion of the Justices, 101 N.H. 527, 132 A.2d 613, 614, the constitutional question of the state giving or loaning its credit or donating its money or property does not appear to have been involved. The principal question was whether the relocation costs could be paid from the constitutionally dedicated highway fund (N.H. Const., Part II, art. 6-a). The New Hampshire court observed:

“While the obligation to remove or relocate utility facilities is placed on the owner by the common law, the Legislature may change this rule.”

and thereupon ruled:

“ * * * The relocation of utility facilities is an integral part of highway improvements. The Legislature, if it chooses to do so, may validly declare that the relocation of utility facilities is part of the cost of highway relocation and reconstruction and shall be paid out of highway funds.”

In Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, 653, the Supreme Court of Minnesota held that although all “gratuities and benevolences of public moneys in aid of private undertakings are prohibited” by Minn. Const., Art. 9, §§ 1 and 10, nevertheless the state constitution “does not prohibit the legislature from, by prospective action * * * fixing the conditions of performance and making provisions for the future recognition of claims for damages founded on equity and justice, although such claims would otherwise be damnum absque injuria and unenforceable against the state.” The Minnesota Court further observed, “Minnesota has been definitely committed to the view that the use of rights-of-way by utilities * * * is one of the proper and primary purposes for which highways are designed.”

Idaho is not committed to either of the aforementioned policies of Minnesota. As to the first policy, Idaho Const. Art. 1, § 14, provides that compensation shall be paid for private property “taken for public use,” and I.C. § 7-711 provides for damages, after the taking, to the remaining portion of the property from which the condemned portion is taken; and thus damages without taking constitute damnum absque injuria and are unenforceable against the state. Idaho-Western R. Co. v. Columbia, etc., Synod, 20 Idaho 568, 119 P. 60, 38 L.R.A.,N.S., 497; Hughes v. State, 80 Idaho 286, 328 P.2d 397. Nor has Idaho ever been committed to the theory of Minnesota’s second policy mentioned, simply because in view of Idaho Const. Art. 11, § 13, and I.C. §§ 62-701 and 62-705, and the decisions of this state herein-before referred to, unanimously holding that the state and its political subdivisions hold public thoroughfares in trust for use by the public, only a permissive right to the use can be gained by those using them.

The Supreme Judicial Court of. Maine in Opinion of the Justices, 152 Me. 449, 132 A.2d 440, 443, held that any expenditure of Maine’s highway user funds for costs of relocation of utility facilities would be violative of Maine’s Constitution, Art. IX, § 19, similar to and identical in import to Idaho Const. Art. 7, § 17, relating to the use of Idaho’s highway user funds. The Court in so ruling, stated:

“In our opinion the relocation of a utility facility is not to be construed as construction or reconstruction of a highway within the meaning of Art. IX, Sec. 19 of the Constitution.

“We do not commonly consider that a power company in erecting a pole line or a water district in laying a pipe in a highway is constructing a highway. To an even lesser degree would we consider the construction of a pole line or a water pipe across country to be the construction or reconstruction of a highway, although the reason for the relocation was occasioned solely by changes in the highway.

“The language of the Constitution should not, in our view, be extended beyond its plain and ordinary meaning.”

In State v. Southern Bell Telephone and Telegraph Co., Tenn., 319 S.W.2d 90, 92, legislation was attacked as violative of Tenn.Const. Art. 2, Sec. 31, prohibiting the loaning of the state’s credit to, and in aid of persons, corporations and municipalities. The Tennessee Supreme Court, in holding that such constitutional provision authorized the use of state credit only to serve a state purpose and that reimbursement of a utility for relocation costs of its facilities could not be so classified, stated:

“Under Article II, Section 31, the expenditure must be for a State purpose, which function the state performs for its general public, agencies and instrumentalities of the State for the accomplishment of a State purpose under State control; and the State must have the ‘ * * * right of use * * *’ of the property upon which the fund is expended. [Citations.]

“The use of State credit for reimbursing utilities for removing their facilities from publicly owned right of way fails to serve a State purpose and is not for a public purpose. [Citation.]

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“We think that the basic test under this Section of our Constitution is whether the expenditure is for a State purpose. In the present case the primary purpose served by the expenditure is for the convenience and benefit of the utilities, the purpose cannot be public. [Citation.]”

and Justices Swepston and Burnett, concurring with the majority opinion holding that costs of relocating utility facilities failed to serve a public purpose, stated:

“The removal and relocation of the facilities of privately owned so-called public utilities is not a proper cost to the State of the construction of a highway, such as is the removal of natural objects consisting of rock, soil, trees, etc.; to the contrary, such facilities have all been placed there with full knowledge that the owners may be required at any time in the future to relocate them and at their own expense; such has uniformly been done up to the present,

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“If by its fiat the Legislature can authorize the expenditure of these large sums on properties in which the State has no financial interest and no control other than the regulatory powers over any corporation ‘affected with a public interest’, then I see no way to restrain the Legislature within the limits of Art. II, Sec. 31 of our State Constitution, whenever it may decide to do equity according to its own conception.”

In State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007, 1013, legislation attempting to authorize state reimbursement of costs of relocating utility facilities, was attacked on the ground that it was violative of N.M. Const. Art. 9, Sec. 24, prohibiting donations of state funds in aid of a private corporation. The Supreme Court of New Mexico in holding the legislation to be unconstitutional, stated:

“We are not unmindful of the fact that in operating its gas distribution system the Southern Union Gas Company is engaged in serving a highly commendable public purpose. But that fact alone does not warrant the state in making a donation in aid of it. * *. ******

“In conclusion, we would answer the main argument of the appellee that relocation of these utilities is a public governmental function by stating that the construction of highways is unquestionably a public governmental function but that we disagree as to relocation of utility facilities. Highways are constructed by the state on state-owned rights-of-way for the use of the public. The Southern Union Gas Company, in laying its gas lines, is acting solely for the benefit of the utility. The line is the property of the utility and to be used solely by it, neither the state nor the public having any right to use these lines. The Southern Union Gas Company is not a subordinate governmental agency nor is it fulfilling a governmental function although it is serving a highly useful purpose in the great American free enterprise tradition by furnishing for profit an essential commodity to the people of this state.”

See also 18 Am.Jur., Electricity, § 18, p. 421; 52 Am.Jur., Telephone and Telegraph, § 34, p. 64; 86 C.J.S. Tel. & Tel., Radio and Television § 37, p. 51; Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308; Southern Bell Tel. & Tel. Co. v. State, Fla., 75 So.2d 796; Consolidated Edison Co. of New York v. State, 276 App. Div. 677, 97 N.Y.S.2d 431, affirmed 302 N.Y.711, 98 N.E.2d 587.

Respondents urge decisions from several jurisdictions in support of their contention that state reimbursement of costs of relocation of utility facilities are expenditures for a public purpose, authorized by I.C. § 40-120. We have considered all those cases. In those of our own jurisdiction, i. e., State ex rel. Nielson v. Lindstrom, 68 Idaho 226, 191 P.2d 1009; Newland v. Child, 73 Idaho 530, 254 P.2d 1066, and Davis v. Moon, 77 Idaho 146, 289 P.2d 614, certain laws were attacked as violative of Idaho Const. Art. 8, § 2; those cases are readily distinguishable from the one at bar, since therein this Court recognized expenditures of public moneys to be for recognized governmental functions of public welfare, and acquisition of public property for educational purposes.

In the Lindstrom case, this Court based its ruling in favor of the constitutionality of the old-age assistance act (Idaho Sess. Laws 1941, ch. 181, § l(m), and 1947, ch. 237), upon the well recognized precept that “the granting of aid to its needy and aged is a well recognized obligation of the state and is a governmental function, tending to promote the public welfare.” [68 Idaho 226, 191 P.2d 1012.]

In Newland v. Child, supra, a proceeding attacking certain provisions of the public assistance act (I.C., §§ 56-210 and 56-224a), this Court in holding that the act was not in violation of Idaho Const. Art. 8, § 2, adopted the reasoning of the Lindstrom case.

Davis v. Moon, supra [77 Idaho 146, 289 P.2d 618], attacked an act appropriating moneys to pay principal and interest on dormitory bonds. This Court held that the act, because of its public purpose, was not violative of Idaho Const. Art. 8, § 2; that the appropriation, in furtherance of the governmental function of education, was in payment of a public building acquired by the state, through its State Board of Education, for the convenience of a normal school, “as a governmental instrumentality for the dissemination of knowledge and learning.”

The nature of the expenditures in reimbursement of the utility relocation costs, as attempted to be authorized by I.C. § 40-120, does not meet the tests required by our Constitution and decisions, to remove such payments from the constitutional prohibition of giving or loaning the credit of the state in aid of a' private association or corporation, or from the implied constitutional limitation against donation of public property for private purposes.

It cannot be gainsaid that if the state or any political subdivision furnished for public consumption the utility services of respondents, such would constitute a proprietory function, and not a necessary governmental function. Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541, 118 Am. St.Rep. 225.

The fact that respondents’ activities, in furnishing services to the public, are public in nature and may be devoted to public use is insufficient to remove payment of the relocation costs from the constitutional prohibitions. The state has not acquired and cannot acquire the property of any privately owned utility, as are respondents, or any interest therein; nor any control over respondents or their officers, except in certain limited aspects through the public utilities commission; nor does the state direct the acquisition and disposition of properties, or control the financial transactions of privately owned utilities; nor is the property owned by such utilities, public property exempt from taxation as provided by Idaho Const. Art. 7, § 4; and whereas, such utilities may, and do, use their moneys and properties for profit, the state and its political subdivisions are prohibited from making a profit directly or indirectly by the use of public moneys. Idaho Const. Art. 7, § 10. Nor is any grant authorized in favor of any utility, of a vested or permanent interest in any public thoroughfare, the right to the use being permissive and as not to incommode the public use thereof.

Moreover, there is no taking of private property for public use in causing relocation of the utilities’ facilities in anywise violative of the eminent domain provisions of Idaho Const. Art. 1, § 14, the injury sustained, if any, being damnum absque injuria, since “uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation.” New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U.S. 453, 25 S.Ct. 471, 474, 49 L.Ed. 831, 835; Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721; State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007; Idaho Const. Art. 1, § 14; I.C. §§ 7-711, 62-701 and 62-705. This is but a recognition of the fundamental proposition that respondents’ permissive use of the public thoroughfares is subordinate to the paramount use thereof by the public.

We therefore hold that I.C. § 40-120(27) providing that costs of relocation of utility facilities shall be a part 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 interstate system, to be paid by the State of Idaho out of the dedicated State Highway Fund, is violative of Idaho Const. Art. 8, § 2, and Art. 7, §■ 17, and therefore unconstitutional and void.

In so ruling, we also answer respondents’ assertion that, if the referred to provision of I.C. § 40-120(27), [Idaho Sess. Laws 1957, ch. 227, § 1(27)], be held to offend the Constitution, then the power of the Idaho Board of Highway Directors to order relocation would disappear, because the legislature, by Idaho Sess.Laws 1957, ch. 227, § 2, declared the legislative intention to be that the provisions of said chapter shall control over and supersede conflicting provisions of existing laws and of laws enacted by the 34th (1957) legislative session. Such is not true because the common law rule, that a utility must pay costs of relocation of its facilities on the public rights-of-way, was by implication constituted a part of Idaho Sess.Laws 1951, ch. 93, the Highway Administration Act of 1951; and attempted abrogation of the common law rule by enactment of Idaho Sess.Laws 1957, ch. 227, § 1, amending I.C. § 40-120 by adding subdivision (27), is inhibited by Idaho Const. Art. 8, § 2 and Art. 7, § 17. It is thus clear that the legislature enacted the Act of 1951 without regard to the later 1957 enactment. We therefore hold that the unconstitutional portions of I.C. § 40-120(27) are separable and may be eliminated from the Highway Administration Act of 1951 and its 1957 Amendments. Clemens v. Pinehurst Water District, 81 Idaho 213, 339 P.2d 665, 667; State Highway Commission v. Southern Union Gas Co., 65 N.M. 84, 332 P.2d 1007, 1016.

The judgment of the district court is reversed, and the cause remanded with instructions to enter judgment, consonant with the views herein expressed, for plaintiff-appellant as prayed for in its complaint.

Costs to appellant.

BELL WOOD, CRAMER and MARTIN, District Judges, concur. PORTER, C. J., and TAYLOR and Mc-QUADE, JJ., not participating.

1 . Now 23 U.S.C.A. § 101 et seq.