(dissenting).
The writer of this dissenting opinion did not participate in the original hearing of this cause due to his absence in presiding over a certain Court of Impeachment which was in progress at that time and which lasted for several weeks.
The defendant in error, Southern Bell Telephone Company, filed its motion for a rehearing which was granted and the cause set down for a rehearing. Oral argument has been heard by counsel for the State and the Southern Bell Company and several counsel for the intervenors. The result of this rehearing has been to review the original issues and whether or not there is error in the majority opinion.
I think there is unanimity of opinion that this is a proper case for a declaratory judgment.
With all deference to the majority view I cannot agree that the Act is not m furtherance of a public purpose. At the very outset I cannot forbear asking the question: why is this not a valid exercise of the police power of the State by the Legislature; and so adjudged in Nichol v. Mayor of Nashville, infraf-
lu considering whether or not it is for a public purpose we should consider that which gave rise to its enactment. The Congress of the United States had enacted legislation looking to the building of super interstate highways wherein provision was made for participation by the State of Tennessee, (and all other states) in the building of this vast system of public roads. Incidentally the sys*220tem was in aid of national defense. Among other things the “Federal-aid highway projects” provided that the cost of relocation of telephone facilities, as well as other public service corporations, would be shared on a percentage basis.
Thus it is that the sole issue before the Court is whether the General Assembly had the power to provide for reimbursement of public utilities for the cost of relocating their facilities when necessitated by Federal-aid highway construction. Now if the Act is not in furtherance of a public purpose it must be adjudged unconstitutional. It seems to me that it is not unconstitutional under our cases, and also cases from foreign jurisdictions; it is not a lending of the State’s credit in aid of this public service corporation in violation of Article 2, Section 31 of the Constitution.
In an early case, Nichol v. Mayor of Nashville, 28'Tenn. 252, it was held that a subscription by the City of Nashville to stock in the N. C. & St. L. Railway, which ran at that time from Nashville to Chattanooga, was for a public purpose. There are numerous cases to the same effect, which need not be cited at this time. This opinion by Judge Turley in 1848 was a judicial pronouncement as to the public policy of the State with regard to the lending of the State’s credit to public service corporations. It was a constitutional exercise of the State’s police power. It was cited and followed by this Court in McConnell v. City of Lebanon, 203 Tenn. 498, 314 S.W.2d 12, in which it was held that an Act authorizing the issuance of bonds by the Town of Lebanon in aid of a business enterprise (a luggage factory) was for a “public purpose”, and not in violation of Article 2, Section 31 of the Consti*221tution. The purpose was to provide employment for a segment of the town’s population and to increase the standard of living.
If it is constitutional for a municipality to thus lend financial aid to the building of a railroad (Nichol v. Mayor of Nashville, supra) and to issue bonds in aid of a luggage factory, the same to become a debt upon the said municipality, I fail to see why the participation by the State with the Federal G-overnment in building a system of interstate roads should be held invalid on the ground that it is not for a public purpose. Moreover the decided weight of authority, as appears from the highest appellate courts of other jurisdictions, holds that the statute herein assailed is not in violation of Article 2, Section 31 of our Constitution; and these courts were construing statutes similar in all respects to our own as well as constitutional provisions similar in language to that of this State. See Opinion of Justices, N.H., 132 A.2d 613; Opinion of Justices, Me., 132 A.2d 440; Minneapolis Gas Co. v. Zimmerman, Minn., 91 N.W.2d 642.
Moreover the building of super highways, express roads and the like has become a matter of public necessity due to the inadequacy of our present highways in every state to accommodate motor vehicular traffic. Every highway is clogged with automobiles, and they are still coming off the assembly lines at the rate of 500,000 per month. Beg’arding the unquestioned need for the betterment of public roads we take judicial notice of the foregoing facts and also this further fact that this State has been for a number of years engaged in rebuilding, resurfacing and widening socalled ‘ ‘ farm to market ’ ’ roads.
Every opinion of this Court within my knowledge has held either expressly, or by clear implication that the *222building of public roads is a public purpose. Baker v. Hickman County, 164 Tenn. 294, 47 S.W.2d 1090, 1094. It was there insisted that tbe statute which authorized the reinbursement of the court for debts incurred in the erection of highways and that the “counties have a claim upon the state for reimbursement” is not in violation of Article 2, Section 31 of the Constitution.
The obligation of the State was “founded in equity and justice”. Why should not this principle be recognized in the case at bar? If as it appears now that the Legislature has seen fit to authorize the State Highway Commissioner to cooperate in the Federal-aid highway program the result is that this State is not lending aid, or credit, to a private corporation but is primarily engaged in building a system of public roads, which is, and has always been, regarded as a public purpose.
We know that the building of this vast system of highways by Federal Act will necessitate the relocation of telephone wires and cables from the State’s right of way. In other words they must “move over” in aid of the building of highway construction.
At this point I wish to digress to say that the insistence made by counsel that the use of the highway by the telephone company is permissive only, and remain at the sufferance of the State, is illusory. In the beginning it may have been permissive, but it is wholly inequitable and very unjust for the State to encourage the utility to occupy the highway, and expend millions of dollars in perfecting its service for the public and then order them “to get off the road.” Under well settled principles of equity the right which in the beginning was permissive has ripened into an easement which is a valid property *223right. Moreover they are there by virtue of Code Section 65-2105, and are ‘transmitting intelligence.” It cannot be doubted that the State has a vital interest in their business. Of course, the State could move against them under the police power, but this power could not be exercised arbitrarily. City of Chattanooga v. Tennessee Electric Power Co., 172 Tenn. 524, 112 S.W.2d 385; Southern Bell Tel. & Tel. Co. v. City of Nashville, 35 Tenn.App. 207, 243 S.W.2d 617; Frasier v. East Tennessee Telephone Co., 115 Tenn. 416, 90 S.W. 620, 3 L.R.A.,N.S., 323; and Russell v. Sebastian, 233 U.S. 195, 34 S.Ct. 517, 58 L.Ed. 912.
The authorities cited on the State’s brief sustaining their contention that “utilities have a non-compensable duty to remove their facilities from publicly owned rights of way when necessary to improve State highways” is the general rule. But the Legislature may assume this obligation when it is in the furtherance of a public purpose. Moreover, the Legislature is not forbidden by the Constitution to provide for payments which it deems equitable and just. Baker v. Hickman County, supra; and Oehmig v. City of Chattanooga, 168 Tenn. 618, 80 S.W.2d 83.
Conceding that the contract between the State and Southern Bell is valid and binding, the Legislature is free to release it from its obligations to pay the cost of relocating its facilities under circumstances which are in the public interest, and do not violate the Constitution. The recent case of Minneapolis Gas Co. v. Zimmerman, supra, and authorities cited therein, is conclusive of this question as well as all other questions made on this appeal. I am not influenced by the recent opinion by the New Mexico Supreme Court (State Highway Commission etc. v. *224Mountain States Tel. & Tel. Co., 332 P.2d 1018, because it is in conflict with what I consider the public policy of this State as reflected in Nichol v. Mayor of Nashville, and McConnell v. Lebanon, supra.
Coming now to the alleged unlawful classification under Section 2 of Chapter 170, Public Acts of 1957, it does not violate the equal protection clause of the Constitution (Article 11, Section 8) because the Legislature is privileged to require the State to assume some specific duties and at the same time exempt it from other duties; it may consent to pay some costs and exempt it from paying other costs. But aside from the foregoing expression, there is a presumption that the classification made in the Act herein assailed is reasonable. McConnell v. City of Knoxville, 172 Tenn. 190, 110 S.W.2d 478, 113 A.L.R. 966; Motlow v. State, 125 Tenn. 547, 145 S.W. 177, L.R.A. 1916F, 177; and Sun Coal Co. v. State, 157 Tenn. 522, 11 S.W.2d 893.
Finally my view of the question of alleged lending of the State’s credit to Southern Bell, I feel that in truth and in fact the State is giving practical and valuable aid to highway construction. By way of illustration, if the cost of relocating these facilities should be ten million dollars, there will be refunded by the United States Government the sum of nine million dollars. The balance of one million dollars indebtedness incurred by the State should be considered as its contribution in that amount to the building of the Federal-aid highway system. The traveling public of this State will have the benefit of this improved system of highways at comparative nominal cost, or the cost of only ten (10%) per cent of the overall cost of the project. It should not be thought of as a *225donation to the telephone company because it is an expenditure for State highway construction, which is clearly in the public interest.
Furthermore I cannot agree with the majority opinion that the statute confers upon this utility benefits in violation of constitutional inhibitions (Article 2, Section 31). The Federal “Reimbursement Act” provides that the “Cost of relocation” means “the entire amount paid by such utility properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.” 23 U.S.C.A. sec. 123(c). By the very language of the Act the right to any reimbursement is confined to non-betterment cost. As the Supreme Court of Minnesota has so clearly pointed out, “The reimbursement merely restores plaintiff utility to the same position it was prior to the relocation of its facilities.” See Minneapolis Gas Co. v. Zimmerman, supra [91 N.W.2d 652]. The foregoing statement cannot be successfully controverted, and it seems to me that it is conclusive of the proposition that the State is not lending its credit in violation of the Constitution.
The majority opinion of this Court, which strikes down Chapter 170 of the Public Acts of 1957, deprives this State of any benefits under the Federal-aid highway project and at the same time the citizens and tax payers of Tennessee are onerated with a tax burden levied by the Federal G-overnment for building super highways in other states. The Legislature must have foreseen the foregoing injurious consequences in the event legislation was not enacted to guard against such an injustice.
Of course, we cannot be concerned as to whether a statute is wise or unwise. But it is not improper to *226consider the purpose of an act which shows on its face that it was not intended to confer a private benefit, i. e. the lending of the State’s credit to a private corporation, to the manifest prejudice of the public interest.
Under universal canons of statutory construction every act is presumed to be constitutional. Indeed it is the duty of the courts to resolve every doubt in favor of the act and sustain it if it is possible to do so.
For the foregoing reasons I respectfully dissent from the majority opinion.