Dissenting Opinion by
Rhodes, P. J.:I am obliged to dissent in this case as the majority opinion would permit the diversion of the Motor License Fund without any authorization by the Legislature and contrary to Article IX, §18 of the Constitution.
I find no power or authority in the Pennsylvania Public Utility Commission to impose upon the Commonwealth of Pennsylvania a portion of the cost of relocating utility facilities which are located on a public highway at a highway-railroad crossing. Sections 409 and 411 of the Public Utility LaAV, 66 PS §§1179, 1181, contain no such authority. Such interpretation by the majority exceeds the intent of the Legislature in enacting them.
I agree with the basic principles set forth in the majority opinion relative to the use of highAvays by utilities. The majority errs, hoAvever, in overlooking those principles in its interpretation of sections 409 and 411 of the LaAV.
The majority opinion states: “It has long been the policy of this CommonAvealth, and most other states, to permit public utility companies to place their facilities upon highway rights-of-Avay, so long as such facilities do not interfere Avitli the public use of the highways. See Bell Telephone Company of Pennsylvania v. Lewis, 317 Pa. 387, 177 A. 36 (1935). Use of the streets by the public utility companies is subject to the *24earlier and superior rights of the public. It has been held that the police power to control and regulate the highways so as to protect the public health and safety is one that cannot be bargained away by legislative or municipal grant. Such authority is both paramount and inalienable. Scranton Gas and Water Company v. Scranton, 214 Pa. 586, 590, 591, 64 A. 84 (1906).
“The public utility companies so using the highway rights-of-way do not obtain any property rights therein. Philadelphia Electric Co. v. Philadelphia, 301 Pa. 291, 302, 152 A. 23 (1930); Bell Telephone Company of Pennsylvania v. Pennsylvania Public Utility Commission, 139 Pa. Superior Ct. 529, 534, 12 A. 2d 479 (1940). The Commonwealth, through any designated agency, may compel the public utility companies to remove or relocate their facilities at the company’s expense. Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission, 168 Pa. Superior Ct. 360, 366, 78 A. 2d 46 (1951); Keystone Telephone Co. v. Philadelphia & Reading Railway Co., 56 Pa. Superior Ct. 384, 386 (1914).”
In fact such utilities are merely permitted without cost to utilize rights-of-way of the Commonwealth for the sole convenience of the utility. Neither the Commonwealth nor the general public (other than the utility’s own customers) derives any benefit whatever from such permissive use. The majority also recognizes that under the common law, in the absence of express statutory authority, such utility companies cannot even claim the costs of such relocation as consequential damages. See Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission, 168 Pa. Superior Ct. 360, 371, 372, 78 A. 2d 46; Westmoreland Chemical & Color Co. v. Public Service Commission, 294 Pa. 451, 458, 144 A. 407 (1928); Pennsylvania Company for Insurance on Lives and Granting Annuities v. Philadel*25phia, 351 Pa. 214, 217, 40 A. 2d 461 (1945). Moreover, the common law rule places on the owner the obligation to remove or relocate such utility facilities.
Recognizing these principles the majority holds that there is nothing to prevent the Commonwealth from paying utility companies for relocating such facilities “providing it expresses the intent to do so through statute.” The majority then finds such authority in sections 409 and 411 of the Public Utility Law, 66 PS §§1179, 1181. Assuming that a statute could authorize such payment by the Commonwealth, such authority does not appear to have been expressed in sections 409 and 411 of the Law. In section 409, 66 PS §1179, the Legislature clearly states the extent to which costs may be imposed upon the Commonwealth. Section 409 (a) begins as follows: “No public utility, engaged in the transportation of passengers or property, shall, without prior order of the commission, construct its facilities across the facilities of any other such public utility or across any highway . . .” Throughout the remainder of the section the Legislature refers only to railroads as they cross one another or as they cross a highway. There is no mention of, or reference to, any other kind of public utility. The major emphasis of this section is on the construction of railroad crossings and nothing else. The majority quotes a portion of section 409 (c) which states: “The commission may order the work of construction, relocation, alteration, protection, or abolition of any crossing aforesaid to be performed in whole or in part by any public utility or municipal corporation concerned or by the Commonwealth.” The majority emphasizes the words “construction” and “relocation,” but it is obvious from a reading of even this portion of section 409 that the work of construction and relocation referred to is the construction and relocation “of any crossing,” i.e., the railroad-highway *26crossing itself. The same is true with respect to that portion of section 411 (a), 66 PS §1181 (a), which the majority quotes as follows: “‘Such compensation (for damages which the owners of adjacent property taken, injured, or destroyed may sustain), as well as the expense of such construction, relocation, alteration, protection, or abolition of any crossing, shall be borne and paid, as hereinafter provided, by the public utilities or municipal corporations concerned, or by the Commonwealth, . . .’ ” The majority stresses the words “expense of such construction” and holds that they include the expenses of relocating the incidental utilities located on the highway right-of-way. However, the only expense of construction intended in this section is the expense of construction or relocation “of any crossing.” The Legislature intended that these sections apply only to the expenses of the railroad reconstruction or relocation and the expenses of the highway construction or relocation. In Department of Highways of Commonwealth v. Pennsylvania Public Utility Commission, 141 Pa. Superior Ct. 376, 380, 14 A. 2d 611, this Court, speaking of section 411, said: “By §411 of the Public Utility Law (66 PS §1181), the resulting expenses of the construction, relocation, alteration, maintenance or abolition of crossings of railroads and highways are directed to be borne and paid ‘by the public utilities or municipal corporations concerned, or by the Commonwealth, . . .’ ”
The majority believes that the relocation of utility facilities (other than the railroad facilities) is as much a part of the construction or relocation of a highway as is the removal of trees or the making of cuts and fills. But it fails to take cognizance of the fact that such relocation of utility facilities is not a part of the construction and relocation of the highway itself. Such utilities are occupiers by consent of the Commonwealth *27without any charge, and they have always been required to bear the cost of their own construction and removal. The obvious reason for the latter rule is that such utilities use the highways for their own convenience, not the convenience of the public, and that they should rightfully bear their own expenses. This is the least that the general public can expect from them.
If the reasoning of the majority is correct, under Article IX, §18 of the Pennsylvania Constitution, the proceeds of the Motor License Fund must be used to pay the cost of such relocation along every highway as part of the construction or alteration cost of such highway. That section of the Constitution provides: “All proceeds from gasoline and other motor fuel excise taxes, motor vehicle registration fees and license taxes, operators’ license fees and other excise taxes imposed on products used in motor transportation [after certain deductions] . . . shall be . . . used solely for construction, reconstruction, maintenance and repair of and safety on public highways and bridges and air navigation facilities and costs and expenses incident thereto, . . . and shall not be diverted ... to any other purpose, . . .” As I Anew it, the Constitution itself prevents the diversion of the Motor License Fund to the payment of obligations which have heretofore rested upon the utilities themselves. See Opinion of the Justices, Supreme Judicial Court of Maine, 132 A. 2d 440. The ultimate result of the majority opinion would be to permit the use of the Motor License Fund for such payments to utilities. Section 401 of the Act of June 1, 1945, P. L. 1242, 36 PS §670-401, provides: “The department shall construct or improve, and thereafter maintain and repair, at the cost and expense of the Commonwealth, the highways forming the plan or system of the State highways, in the several counties and townships.” Consequently, if we apply the interpreta*28tion given by the majority to the term “construction,” the ultimate result is inevitable.
The costs of relocating such incidental utility facilities form no part whatever in the construction of a highway or its relocation whether such construction is at a railroad crossing or elsewhere. The only exception to the general rule that the costs of relocating utility facilities may not be placed upon the Commonwealth is where a railroad crossing is involved and then only the costs of the railroad crossing and highway may be apportioned or allocated to the Commonwealth. No other exception is made or implied by sections 409 and 411.
Sections 409 and 411 of the Law do not give the commission the power or authority to allocate the cost of relocating utility facilities (other than railroad costs) merely because such utility facilities are located in a highway which crosses a railroad. These sections relate, as indicated, only to the actual highway and railroad construction. The power and jurisdiction of the commission with respect to the various utility facilities crossing one another comes from section 412 of the Law, 66 PS §1182, not from sections 409 and 411. Section 412 provides: “The commission may, after reasonable notice and hearing, upon its own motion or upon complaint, prescribe as to service and facilities, including the crossing of facilities, just and reasonable standards, classifications, regulations, and practices to be furnished, imposed, observed, and followed by any or all public utilities; . . .”
Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission, 168 Pa. Superior Ct. 360, 78 A. 2d 46, does not support the imposition of incidental utility relocation costs upon the Commonwealth. In that case the cost of relocation was not imposed upon the Commonwealth. The broad language therein *29to the effect that such utility facilities are within the scope of section 409 is dicta, especially in view of the fact that section 412, which relates to the crossing of utilities inter se, is not mentioned or discussed. It is also my opinion that the cases of Delaware River Port Authority v. Pennsylvania Public Utility Commission, 180 Pa. Superior Ct. 315, 119 A. 2d 855, and Delaware River Port Authority v. Pennsylvania Public Utility Commission, 184 Pa. Superior Ct. 280, 133 A. 2d 853, cannot be extended to support the imposition of such relocation costs upon the Commonwealth in this case. The Delaware Eiver Port Authority is a self-liquidating authority; this is materially different from the Department of Highways which pays its costs of construction and relocation out of the Motor License Fund. Unlike the Motor License Fund the funds of the Delaware Eiver Port Authority do not have the protection of Article IX, §18 of the Pennsylvania Constitution. Moreover, it may be that we did not give sufficient consideration to the limited scope of sections 409 and 411, in view of the provisions of section 412. However that may be, it is clear that in the Delaware Eiver Port Authority cases we did not hold that the cost of relocating facilities of incidental utilities was an expense of the construction of the highway; The holding' of the majority that the relocation of such incidental utility facilities is a part of highway construction is unwarranted by any equitable consideration and is without basis in the Public Utility Law and the cases de-. cided thereunder. Most important, however, is the fact that the imposition of these relocation costs upon the Commonwealth is without any doubt contrary to the intent, purpose, and prohibition of Article IX, §18 of the Pennsylvania Constitution.
The majority refers to Pennsylvania Railroad Company v. Pennsylvania Public Utility Commission, 136 *30Pa. Superior Ct. 1, 7 A. 2d 86. This case held only that the Public Utility Commission could allocate the expenses of maintenance and repair of a bridge crossing a railroad equally between the railroad and the Department of Highways.
The Federal-Aid Highway Act, which the majority states has focused attention upon the present problem, indicates the traditional rule that except for railroads relocated because of highway construction the sovereign is not required to pay for the relocation of utility facilities. Under the federal act the Federal Government will pay as high as 90 per cent of the cost of highway construction. If these funds are used for utility relocation it is a matter of simple mathematics that the funds available for more extensive highway construction will be greatly diminished. Under the federal act the cost of relocating such incidental utility facilities is payable out of federal funds only if such is authorized by the state law (except for railroad relocation costs which are required to be reimbursed).1 House Bill No. 984 (The General Assembly of Pennsylvania, 1957), which was vetoed by the Governor, would have authorized the payment of incidental utility relocation costs from the Motor License Fund.2 The significance of this vetoed measure is that, if under the present law *31the relocation costs of incidental utility facilities were a part of highway construction, it would not have been necessary to have this special enactment. Secondly, the act would have applied only to construction under the federal program.3 The majority’s interpretation of the present Public Utility Law extends it at least to all highway construction crossing a railroad regardless of whether such construction is or is not under the federal program.
I briefly summarize my conclusions: It appears that, at common law and traditionally, utilities which are permitted to use highway rights-of-way for their convenience and benefit are not entitled to reimbursement for relocation or construction costs, at least not in the absence of clear statutory authority. The Legislature in sections 409 and 411 of the Public Utility Law has made one exception to the general rule. Under those sections, where a railroad crosses a highway, the cost of construction or relocation of such crossing may be allocated to the Commonwealth.4 This is a traditional exception to the general rule, which even the Federal-Aid Highway Act recognizes. Other utility services, however, use the highways by mere permission, without cost, and they acquire no property rights whatever therein. There is nothing in sections 409 and *32411 which even remotely relates to the imposition of their relocation costs upon the Commonwealth. To say that because they happen to be located, on a highway which crosses a railroad they are entitled to be reimbursed under sections 409 and 411 is to broaden unreasonably the scope, meaning, and intent of those sections. Such utilities form no part of the highway; their relocation is not a part of the highway construction under normal circumstances. Why, then, should they be considered part of the highway when the highway happens to cross a railroad? The fact remains that the very limited exception to the rule forbidding imposition of such costs upon the Commonwealth, as that exception has been expressed in sections 409 and 411, applies only to the construction or relocation costs of the highway and the railroad, and to no other costs.
. Finally, the meaning given by the majority to the words expense of the construction of a highway cannot fail to create consternation. Expense of construction cannot be extended logically or reasonably, at least in the absence of direct and specific statutory mandate, to include gratuities to those utilities which have been given access to our highways at the will of the Commonwealth without any cost for the privilege. I regret to say that the majority opinion is pure judicial legislation, and, among other things, would accomplish the purpose of House Bill No. 984, which was vetoed by the Governor.
In states where reimbursement for costs of relocating utility facilities as a part of highway improvements is broadly applied, it is recognized also that it is for the Legislature to declare that the relocation of such facilities is a part of the cost of highway relocation and reconstruction and shall be paid out of highway funds. Opinion of the Justices, Supreme Court of New Hampshire, 132 A. 2d 613.
“The Pennsylvania Motor Federation estimates if the bill was signed into law it would tap the Motor License Fund for 200 million dollars in the nest 10 years. It is all money that has been going for highway construction and improvement.” The Morning Call, Allentown, Pa., July 17, 1957.
It has been announced by the Federal Bureau of Public Roads that the Federal Government has presently earmarked $90,036,000 to Pennsylvania for construction of the early stages of the federal super highway system, and that highway construction contracts in Pennsylvania already awarded or awarded with work started total $104,987,000 of which the Commonwealth will pay about $14,900,000. The total will finance about 81.9 miles of roadway.
For certain approved types of primary and secondary highways the Federal Government will reimburse the Commonwealth to the extent of 50 per cent of the construction cost.
See Department of Highways v. Pennsylvania Public Utility Commission, 179 Pa. Superior Ct. 376, 116. A. 2d. 855.