(dissenting).
With due deference to the majority opinion I cannot agree with the conclusions therein reached. The difference in our opinions stems from our respective views concerning the status of respondents’ transportation facilities upon the highway right of way prior to removal as directed by appellant. The majority opinion holds that a utility as mentioned in I.C. §§ 62-701 and 62-705, by the construction and maintenance of their respective transportation facilities upon a highway acquires no property right and that such use is merely permissive. I feel that such view is contra to the great weight of judicial authority including decisions of the Supreme Court of the United States.
The principal constitutional and statutory provisions involved are quoted in the majority opinion which obviates the necessity of quoting them at length herein.
In order to appraise the rights, if any, which are acquired by a public utility, such as these respondents, as a result of constructing, maintaining and operating their facilities upon the public highways of this state we must consider the constitutional and statutory provisions which relate to and confer whatever rights exist. Art. 11, Sec. 13, of the Idaho Constitution provides in substance that any individual, association or corporation, properly organized, shall have the right to construct and maintain telegraph and telephone lines within this state, and that the legislature by general law shall provide reasonable regulations to give full effect to this constitutional provision. Said section clearly emphasizes that the right to construct and maintain telegraph and telephone lines within this state under reasonable regulations is to be assured. Under its terms the legislature is in effect directed to provide proper and reasonable regulations to encourage such construction and maintenance. Pur*517suant to such directive the legislature at its earliest opportunity enacted I.C. § 62-701 which grants to telephone and telegraph corporations the right to use the highways of this state for the construction of their lines. A few years later, in 1903, the legislature, no doubt anticipating the important part that electrical energy would play in the lives of future generations and having in mind the growth and development of this state, granted substantially the same rights to electric power companies by the enactment of I.C. § 62-705.
The constitutionality of said enactments (I.C. §§ 62-701 and 62-705) is not questioned and we are here only concerned with their interpretation. The State of California has for many years had a statute identical to I.C. § 62-701 and many times it has been referred to and construed by the Supreme Court of that state. That Court in describing the rights which a utility acquires as a result of establishing its facilities pursuant to the privilege offered under such statute has stated:
“This section constitutes a grant of a franchise which the state offered, and petitioner accepted by the construction of its lines. The rights acquired by the telegraph company, by accepting and availing itself of the provisions of the section, are vested rights which the Constitutions, both state and federal, protect. They cannot be taken away by the state, even though the Legislature should repeal the section, or by the people through a constitutional provision.” (Emphasis supplied.) Postal Telegraph-Cable Co. v. Railroad Commission, 200 Cal. 463, 254 P. 258, 261.
In the case of Los Angeles County v. Southern California Tel. Co., 32 Cal.2d 378, 196 P.2d 773, 777, the Supreme Court of California while further discussing such statute said:
“Section 536 has been judicially construed by many decisions of this court, and it has been uniformly held that the statute is a continuing offer extended to telephone and telegraph companies to use the highways, which offer when accepted by the construction and maintenance of lines constitutes a binding contract based on adequate consideration, and that the vested right established thereby cannot be impaired by subsequent acts of the Legislature.” (Emphasis supplied.) '
One of the early decisions in which the right of a public utility to maintain its facilities in a public street is discussed is the case of Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U.S. 84, 33 S.Ct. 997, 1000, 57 L.Ed. 1400 wherein the city had the express power under its legislative charter to grant the right to lay water pipes upon and along its streets for the purpose of distributing water. It was contended that the grant, by ordinance of the *518city, to lay water pipes upon the streets of the city was nothing more than a revocable license, the Supreme Court of the United States said:
"The right which is acquired under an ordinance granting the right to a water company to lay and maintain its pipes in the streets is a stibstantial property right. It has all the attributes of property. It is assignable, and will pass under a mortgage sale of the property and franchises of the company .which owned it.” (Emphasis supplied.)
In the case of Russell v. Sebastian, 233 U. S. 195, 34 S.Ct. 517, 520, 58 L.Ed. 912, the Supreme Court of the United States in discussing the rights acquired under a legislative provision such as I.C. § 62-701 stated:
"That the grant, resulting from an acceptance of the state’s offer, constituted a contract, and vested in the accepting individual or corporation a property right, protected by the Federal Constitution, is not open to dispute in view of the repeated decisions of this court.” (Emphasis supplied.)
In City of Owensboro v. Cumberland Telephone & Telegraph Company, 230 U.S. 58, 65, 33 S.Ct. 988, 990, 57 L.Ed. 1389, the ..United States Supreme Court had under consideration .an ordinance granting tq a .. telephone company the right to place and maintain poles and wires upon the streets of a city and in discussing the right involved said:
“That the right conferred by the ordinance involved is something more than a mere license is plain. * * * The right conferred came from the state through delegated power to the city. * * * That an ordinance granting the right to place and maintain upon the streets of a city poles and wires of such a company is the granting of a property right has been too many times decided by this court to need more than a reference to some of the later cases: [citing cases] As a property right it was assignable, taxable, and alienable. * * * If the grant be accepted and the contemplated expenditure made, the right cannot be destroyed by legislative enactment, or city ordinance based upon the legislative power, without violating the prohibitions placed in the Constitution for the protection of property rights. (Emphasis supplied.)
The Supreme Court of Washington in City of Seattle v. Western Union Telegraph Co., 21 Wash.2d 838, 153 P.2d 859, 867, had under consideration-a statute very comparable to I.C. § 62-701 and said:
“that the grant thus made by the state did not require that a telegraph company having the status of respondent be required to obtain the consent qf *519any state agency to make such grant binding, all that was required being that the grant be accepted; that respondent accepted such grant by continued operation and maintenance of its lines upon the streets of Seattle after the passage of the act; that by such acceptance, the grant became a contract between the state and respondent; which could not thereafter be impaired by the state or any of its agencies; that the grant included not only the right to operate, construct and maintain, without compensation, its lines upon the streets of Seattle so occupied at the time of the passage of the act, but also upon such other and additional streets as might be necessary in furnishing the public the service for which respondent was formed.” (Emphasis supplied.)
Among the courts of other jurisdictions which have held that the statutory offer of a franchise when accepted by a public utility by the construction, maintenance and operation of its facilities results in a valid contract secured by the Federal Constitution against impairment are:
New York Electric Lines Co. v. Empire City Subway Co., 235 U.S. 179, 193, 35 S.Ct. 72, 59 L.Ed. 184, Ann. Cas.l915A, 906; City Railway Co. v. Citizens’ Street Railroad Company, 166 U.S. 557, 567, 17 S.Ct. 653, 41 L.Ed. 1114; Chicago Gen. Ry. Co. v. City of Chicago, 176 Ill. 253, 259, 52 N.E. 880, 66 L.R.A. 959, 68 Am.St.Rep. 188; State, ex inf. McKittrick v. Southwestern Bell Telephone Co., 338 Mo. 617, 92 S.W.2d 612; Arkansas State Highway Commission v. Southwestern Bell Telephone Co., 206 Ark. 1099, 178 S.W.2d 1002.
Further considering the nature of such rights it may he noted that in City of Owensboro v. Cumberland Telephone & Telegraph Company, supra, the court said that "as a property right it was assignable, taxable, and alienable[230 U.S. 58, 33 S.Ct. 990.] In Western Union Telegraph Co. v. Hopkins, 160 Cal. 106, 116 P. 557, 563, the Supreme Court of California had under consideration a statute identical to I.C. § 62-701 and by unanimous opinion decided that the right acquired by a telegraph company by the occupation of a highway pursuant to the offer contained in such statute acquired a property right which was subject to taxation the same as other valuable property within the state and in discussing the question involved said:
“We are of the opinion that the weight of authority and the better reasoning support the construction given by the Visalia case [Western Union Tel. Co. v. City of Visalia, 149 Cal. 744, 87 P. 1023], viz., that the section was a grant by the state to all telegraph corporations accepting the same, of the rights therein specified. * * * And *520to the extent that the offer of the state contained in the section was accepted by a telegraph company by actual occupation of highway prior to any repeal, modification, or suspension of the section, no right of revocation having been reserved, such telegraph company has vested rights that cannot be taken away by state or city without compensation. * * * ” (Emphasis supplied.)
' In support of the view expressed in the majority opinion to the effect that only a permissive use is gained by a utility accepting the offer contained in such statutes, a number of decisions of this Court are cited. Attention is called to the fact that neither Art. 11, Sec. 13, Idaho Constitution, nor I.C. §§ 62-701 and 62-705 were considered in arriving at the decision in any one of such 'cases. Among the cases so cited is Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121, 1122, L.R.A.1917F, 1004, wherein the Court had under consideration a resolution adopted by the City of Boise authorizing the appellant to install a gasoline tank in the city street, this Court held that the gas tank constituted an obstruction to the street and could not be maintained. The Court said:
“The city is therefore, without authority, in the absence of legislative enactment * * * permitting it, to grant a private person or corporation a permit to erect or maintain a permanent obstruction in a public street or thoroughfare for a purely private purpose; we have no such statute in this state.” (Emphasis supplied.)
In Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681, the Court held that plaintiff could not acquire absolute right to occupy a portion of a street for taxi use. Here again we have no authorization by statute permitting such use. In Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173, it was held that the building permit involved resulted only in a permissive use by the holder. We have no statute authorizing such a use of streets or highways. In Village of Lapwai v. Alligier, 78 Idaho 124, 229 P.2d 475, the Court had under consideration a franchise, granted by an ordinance of the respondent village, which by its terms expired prior to the commencement of the action and was never renewed. In the case under consideration we do have and are concerned with, statutes authorizing and permitting the construction of utility lines within the highways.
It is my view that I.C. §§ 62-701 and 62-705 do confer property rights to utility companies specified therein when such utility has accepted the offer by the construction and maintenance of their lines upon the right of way. These statutes have been the law of this state for more than fifty years. No doubt public utilities which have made installations pursuant to *521them have long relied upon the construction placed upon them to the effect that they have some right upon the highway. Such utility systems cannot be operated without the use of poles, conduits, wires and fixtures. These structures are permanent in their nature and require a large investment for their erection and construction. What utility would locate its facilities upon a street or highway with the understanding or knowledge that at the next meeting or change of the city council, board of county commissioners, or legislature it may be compelled without just cause or compensation, to remove its facilities.
It is conceded that at common law these utilities could be required to relocate their facilities at their own expense. It must also be acknowledged that the legislature has the right to enact legislation which departs from and renders inapplicable the common law rule, if such legislation is not in violation of the constitution. The majority opinion infers that the legislature’s right to abrogate the common law rule must be otherwise “circumscribed” and cites a New York case wherein it is held that the common law obligation of the utility to relocate its own structures continues until the constitution and statute expressly provide otherwise. I know of no precedent in this state which will support the view expressed in said New York case. This Court has repeatedly held that our state constitution is a limitation and not a grant of power and that the legislature has plenary power in all matters except those prohibited, by the constitution. In Davis v. Moon, 77 Idaho 146, 289 P.2d 614, 617, this Court said: “The legislature has unlimited power to legislate where legislation is not prohibited.” (Emphasis supplied.) It must be conceded that the rule in this state has always been to the effect that the legislature is at liberty to act upon any subject unless the constitution, expressly and clearly prohibits it. Such rule is succinctly stated in Ingard v. Barker, 27 Idaho 124, 147 P. 293, 295, as follows:
“The rule would seem to be that in passing upon the constitutionality of statutes generally, no matter from what standpoint the assault thereon may be made, it is well settled that nothing but a clear violation of the Constitution will justify the courts in overruling the legislative will; and, where there is reasonable doubt as to the constitutionality of an act, it must be resolved in favor of the act.” (Emphasis supplied.)
There is not one word in the constitution of this state that in any manner restrains or prohibits legislation relative to the use of highways by public utilities. To the contrary, Sec. 13, Art. 11 of our Constitution is a clear mandate to the legislature to provide regulations so as to give full effect to the right to construct and maintain transmission facilities in this state. It is my *522view that by enactment of Ch. 227 of the Idaho Session Laws of 1957 the legislature rendered inapplicable such common law rule as concerns the issues here involved.
Considering that Sec. 13, Art. 11 of our Constitution provides that the utilities referred to therein “shall have the right” to construct and maintain lines within this state and that “the legislature shall * * * provide reasonable regulations to give full effect to this section”, and considering also that I.C. §§ 62-701 and 62-705 have been upon the statute books since early statehood it is clear that the framers of the constitution and the legislature have conclusively established that to encourage the construction and maintenance of such utility lines upon highway rights-of-way is a •firm public policy of the state.
Whatever may be the view of others it is clear to this writer that these constitutional and statutory provisions do not support a contention that the sole purpose of highway rights-of-way in this state is limited to travel and the transportation of persons and property in movable vehicles. They are, in my judgment, designed and intended as avenues of communication, travel and transportation and that the installation and maintenance upon them of public utility facilities for transmission of intelligence, communications and electrical energy is certainly a proper, if not a primary purpose, for which they are designed.
The utilities herein concerned are regulated under the police power of the state; they are engaged in the business of furnishing communication and electric power to the public at just, reasonable and controlled rates; they are under a legal duty to serve the public; their business is affected with a public interest and confers important and direct benefits upon the public; the use of highway rights-of-way for the location of their transmission facilities promotes the extension of such service to the greatest number of people at a. cost less than would otherwise be expected.
The cases most heavily relied upon by appellant and in the majority opinion are State Highway Commission v. Southern Union Gas Company, 65 N.M. 84, 332 P. 2d 1007, and State v. Southern Bell Telephone & Telegraph Co., Tenn., 319 S.W.2d 90.
Each of these cases holds that a statute authorizing reimbursement to a public utility of replacement cost is repugnant to a constitutional prohibition that a state shall not lend or pledge its credit. Upon examination of said decisions it will be found that no reference or mention is made in the decision of either court, to any constitutional provision comparable to Art. 11, Sec. 13 of our Constitution or to any statutory provision comparable to I.C. §§ 62-701 or 62-705. I therefore assume that neither court had either of such provisions to deal *523with in arriving at its decision and did not consider any comparable provisions.
The New Mexico court does not recognize that a public interest or public purpose is any criterion by which the validity of an appropriation of public funds is to be measured. This Court has repeatedly held that. it is an important if not controlling factor. to be considered. Among the recent decisions of this Court wherein such public purpose is discussed is Newland v. Child, 73 Idaho 530, 254 P.2d 1066, 1070, and the Court said:
“It is this public purpose which saves the entire public assistance law from-direct conflict with Section 2, art. 8,; Idaho Const., * * *” (Emphasis-supplied.) -,
In the case of Davis v. Moon, 77 Idaho 146, 289 P.2d 614, 618, this Court said:
“Moreover, the appropriation act' here under consideration is saved from conflict with Idaho Const, art. VIII, sec. 2, providing that, ‘The credit of the state shall not, in any manner, be given, or loaned to, or in aid of any individual, association, municipality or corporations * * *.’ by the fact that such enactment is for a public purpose. (Emphasis supplied.)
It is undebatable that the establishment, maintenance and control of public roads and highways in this state is a public purpose embraced and included within the- police powers of the state. By reason of the foregoing mentioned distinguishing features I do not feel that the decisions in the Tennessee and New Mexico cases herein-before referred to are in point.
One of the constitutional questions here before us has been considered in many other jurisdictions having comparable constitutional restrictions against lending aid and credit to individuals, etc. Among them is the Supreme Court of New Hampshire and in an advisory opinion wherein that court had under consideration a statute similar to chapter 227 here involved, that Court said:
“While the obligation to remove or relocate utility facilities is placed on the owner by the common law, the Legislature may change this rule. (Citing cases.) This principle was expressed in the recent Opinion of the Justices, 152 Me. 449, 132 A.2d 440 as follows: ‘The State, however, may, in our view, pay for the cost of relocating such facilities, if it chooses to do so. The purpose of such expenditures is public in nature, and the extent and conditions under which the State may meet such costs are for the Legislature to determine.’ The common-law rule which places the costs of relocating utility facilities on the owner ‘specifically admits of legislative change.’ Relocation of Public Utilities Due to Highway Improvement — An Analysis *524of Legal Aspects, Highway Research Board Special Report 21, p. 40 (1955). If the Legislature decides to make such a change it would not be a violation of our Constitution, Part II, Article 5th or Part I, Article 10th.” (Citing cases.) (Emphasis supplied.) Opinion of the Justices, 101 N.H. 527, 132 A.2d 613, 614.
One of the leading cases wherein a statute identical in legal effect to chapter 227 here involved is the case of Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, 651, and in construing the state’s constitutional prohibitions against the state lending aid or credit to individuals the court said:
“We have already pointed out that the use of rights-of-way by utilities for locating their facilities is one of the primary purposes for which highways are designed, even though their principal use is for public travel and transportation of persons and property. It follows that where it becomes reasonably necessary to relocate such utility facilities in order to improve the highway for public travel * * * an expenditure of funds to effect such relocation is properly a governmental function exercised for a public purpose of primary benefit to the entire community. It is primarily for a public purpose not only because the relocation is made necessary in order to expedite public travel and transportation, but also for other substantial reasons.” (Emphasis supplied.)
The Supreme Court of the state of Maine ■in passing upon similar legislative and constitutional provisions in Opinion of the Justices, 152 Me. 449, 132 A.2d 440, 443, had this to say:
“ * * * At common law there is no obligation to pay for the removal or relocation of public utility facilities required by changes in highways. (Citing cases.) The State, however, may, in our view, pay for the cost of relocating such facilities, if it chooses to do so. The purpose of such expenditures is public in nature, and the extent and conditions under which the State may meet such.costs are for the Legislature to''determine.” (Emphasis supplied.)
One of the recent cases considering a like question is Wilson v. City of Long Branch, 27 N.J. 360, 142 A.2d 837, 847, wherein the Supreme Court of New Jersey upheld the constitutionality of a legislative act authorizing the payment of the expense, of a utility relocation necessitated by an urban redevelopment plan and said:
“Utilities are necessary adjuncts of the public welfare. Their business operations and their property have been subject to special legislative treatment for many years. * * * In the pres*525ent context, uninterrupted service during and after the completion of the redevelopment project is vital. Where removal of the facilities is necessary, it is important that the relocation be as expeditious and as controversy-free as possible. That end is intimately related to the achievement of the overall public purpose. * * (Emphasis supplied.)
In State v. City of Dallas, Tex.Civ.App., 319 S.W.2d 767, 775 the court in considering the right of the state to reimburse a utility described the rights of a utility acquired by the construction and maintenance of its facilities in and upon the public ways as “valuable property rights” which are “protected by constitutional guarantees” and while discussing a statutory provision comparable to chapter 227 the court said:
“We believe that House Bill 179, etc., Article 6674W-4 is valid and constitutional and does not donate public monies to corporations nor is it a gift or loan of the credit of the State, or a release of the obligations of corporations or individuals, or an appropriation for private or individual purposes, in violation of sections 50, 51 and 55 of Article III of the Constitution of Texas, or Section 6 of Article XVI.”
To aid in determining whether or not an act is for a public purpose I deem it proper to consider that which gave rise to its enactment. The congress of the United States has enacted legislation looking to the building of super interstate highways wherein provision has been made for participation by the states in the building of a vast system of public roads. Among other things such legislation provides that the costs of relocation of public utility facilities, such as are here involved, would on such Federal Aid projects be shared by the Federal Government and the state on a percentage basis. The utility company involved would be reimbursed the actual cost attributable to such relocation after deducting any in-, crease in the value of the new facility and any salvage value derived from the old facility. The reimbursement is confined to non-betterment cost and merely restores the utility to the same position it was prior to the relocation, it gains absolutely nothing.
It is common knowledge that many of our highways are clogged with vehicular traffic. The building of super highways has become a matter of public necessity due to the inadequacy of our present highways. The legislature of this state has seen fit to participate with the Federal Government in building a system of interstate highways and by the enactment of chapter 227 has authorized and directed the state’s cooperation in the Federal Aid highway program. The result is that by vir*526tue of said chapter 227 the state is primarily engaged in building a system of public roads, which is and always has been, regarded as a public purpose.
There are well reasoned cases wherein the constitutionality of such legislation as chapter 227 is upheld on the theory that justice and equity require the reimbursement therein provided for. A leading case is Oswego & S. R. Co. v. State, 226 N.Y. 351, 124 N.E. 8, 10 wherein the writer of the opinion Justice Cardozo included the following:
“The state was about to execute a great public work. It saw that in the doing of that work there would be destruction of private property. Much of the damage would be damnum absque injuria. None the less it would be damage. The result would be inequality in the distribution of public burdens. Some would pay more dearly than others in proportion to benefits received. This inequality the Legislature, fixing in advance the conditions of the undertaking, had the power to correct. It might refuse to launch an enterprise at the price of hardship and oppression. There was power to destroy, and leave the loss where it might fall. There was also power to pay for the destruction, and thereby re-establish some uniformity of proportion between benefits and burdens. The question was for the Legislature whether the equity of compensation was strong enough to merit recognition. We cannot hold it to be illusory.”
The recognition of an equitable and moral obligation as justifying the disbursement of public monies for a public purpose has been considered by this Court and it held that when the legislature has properly authorized and directed the disbursement of public money to meet a moral obligation, connected with a public purpose, it does not violate the constitutional provision here considered. In the case of Newland v. Child, supra [73 Idaho 530, 254 P.2d 1070], this Court said:
“We held in State ex rel. Nielson v. Lindstrom, 68 Idaho 226, 191 P.2d 1009, 1012, that ‘The granting of aid to its needy aged is a well recognized obligation of the state and is a governmental function tending to promote the public welfare.’ * * *
“The 'obligation of the state’ referred to in the Lindstrom case is to be understood as a moral rather than a mandatory obligation.” (Emphasis supplied.)
Again in the case of Davis v. Moon, supra [77 Idaho 146, 289 P.2d 618], where it was contended that an appropriation of state monies to pay both principle and interest on college dormitory bonds was unconstitutional this Court said:
*527“Further, the enactment is not invalidated, in the light of its public purpose, merely because the obligation of the state in relation to the subject matter of such legislation is a moral rather than a mandatory one, Gem Irrigation District v. Gallet, 43 Idaho 519, 253 P. 128; Newland v. Child, supra; 81 C.J.S. States § 133, p. 1150; 42 Am.Jur. Public Funds, sec. 621, p. 763, nor by the fact that a private individual or organisation may benefit thereby.” (Emphasis supplied.)
I cannot agree with the conclusion reached in the majority opinion that said chapter 227 violates Art. 7, Sec. 17 of our constitution. It is my view that the word “construction” as used in said section of our constitution embraces everything connected with and necessarily incident to the complete accomplishment of construction. As was observed by the trial court in this case “it is common knowledge that the highway department frequently relocates farm fences, irrigation works and driveways when it widens and relocates a highway, and the expense of doing so is an incident to and properly considered a cost of construction.” Among the many decisions supporting such a view is the case of Minneapolis Gas Co. v. Zimmerman, supra [253 Minn. 164, 91 N.W.2d 649], wherein the Minnesota court said:
“* * * it would be unrealistic to construe the broad language of Minn.Const, art. 16, §§ 2 and 6, so narrowly as to prohibit the legislature from authorising the use of highway funds for the non-betterment location of utility services as a> proper cost of highway construction, reconstruction, improvement, and maintenance.” (Emphasis supplied.)
To the same effect is the decision of the Supreme Court of New Hampshire (see Opinion of the Justices, 101 N.H. 527, 132 A.2d 613, 616) construing a constitutional provision which is almost the exact counterpart of Sec. 17 here considered, and the Court held that:
“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.” (Emphasis supplied.)
In the case of Department of Highways v. Pennsylvania Public Utility Commission, 185 Pa.Super. 1, 136 A.2d 473, 483, the Court said:
“When the Commonwealth, in order to improve a highway crossing a railroad, orders a public utility company to relocate its facilities placed within *528the right-of-way with the Commonwealth’s permission, the payment, under statutory authority, of a part of the cost of such relocation is a part of the construction cost of the highway improvement, and is not a gratuity of the type prohibited by the Constitution”. (Emphasis supplied.)
In the majority opinion it is stated in substance that the legislature specifically limited the utilities’ use of the public roads, streets and highways by the language “as not to incommode the public use of the road or highway” which is contained in §§ 62-701 and 62-705. With such interpretation I do not agree. The plain language used in said § 62-701 refers solely to construction of lines and erection of poles, etc. It is the original construction of lines and erection of poles, etc. which is directed to be done in such manner and at such points so as not to incommode the public use of the road or highway. There is not one word in said section which needs construction, and as this Court has repeatedly said it is a primary canon of statutory construction that where the language of a statute is unambiguous, the clear expressed intent of the legislature must be given effect and there is no occasion of construction. Surely we are justified in assuming that if the legislature intended any limitation other than is plainly stated it would have found and used words to express such intention.
Nor can I agree with the view expressed in the majority opinion that if by the acceptance of the offer contained in said I.C. §§ 62-701 and 62-705 a property right became vested in the acceptor it would constitute a violation of the Idaho Constitution, Art. 8, Sec. 2, by giving or loaning the credit of the state. I know of no constitutional provision which prevents the granting, in the manner provided by law, of any easement, interest or title in or to lands owned by the state. In fact highway rights-of-way, or portions thereof, are frequently conveyed, exchanged, abolished, abandoned or otherwise dealt with pursuant to authority conferred by statute.
In support of the contention that a right is acquired by a utility when it constructs its transportation facilities upon a highway pursuant to said §§ 62-701 and 62-705, attention is called to the fact that each of said statutes specifically provides that a right is .involved. The first words used in § 62-701 are “Right to use highways” and in § 62-705 it is specifically provided that the utility “shall have and is hereby given the right to erect, construct, maintain and operate * * * ”. Without attempting to define such right, suffice to say that it is ■the opinion of this writer that by the construction and operation of transportation facilities upon the highway such utility ac*529quired a right to remain there subject to reasonable exercise of the police power of the state and that such right cannot be taken away without just compensation. In Western Union Telegraph Co. v. Hopkins, supra, the state of California described such right in the following language:
“Of course, the liability of plaintiff to all such reasonable regulations as is warranted in the proper exercise of the police power cannot be disputed. In fact, this is expressly stipulated by the provisions in section 536, Civil Code, that the system of the telegraph company must be constructed ‘in such manner and at such points as not to incommode the public use of the road or highway.’ But in so far as actual occupation of a highway by a telegraph company was taken or had under section 536, Civil Code, we are of the opinion that a vested right resulted, subject only to the proper exercise of the police power, and that it must be held that there was no such reservation as warranted such right being taken away without compensation.” [160 Cal. 106, 116 P. 563.] (Emphasis supplied.)
In this case the legislature has concluded that just compensation is the amount of relocation costs. It is my opinion that I.C. § 40-120, as amended by the Idaho Sess. Laws of 1957, Ch- 227 does not offend any provision of our Constitution, and that the judgment of the district court should be sustained.