(dissenting).
In as much as the majority, after granting a rehearing, has adhered to its previous conclusions, I feel that I should herewith supplement the dissent which I wrote when the decision of the majority was first announced.
In my original dissent, I called attention to the fact that the Supreme Court of Maine and New Hampshire had adjudged a statute equivalent to our Chapter 170, Public Acts of 1957, not to be in violation of their respective constitutional provisions, forbidding the lending of the State’s credit “in aid of any person, association, company, corporation or municipality”. An identical adjudication on July 16, 1958 was announced by the Supreme Court of Minnesota in Minneapolis Gas Co. v. Zimmerman. The opinion has not yet appeared in the published reports.
There was also furnished to the members of this Court copies of opinions likewise so adjudging by Courts of original jurisdiction as follows: — “Idaho v. Idaho Power Company, et al, decided July 3, 1958, District Court; Texas v. City of Austin, et al, decided August 14, 1958, *227District Court; State Highway Commissioner of New Mexico v. Mountain State Telephone Co. et al, decided January 14, 1958, District Court”. Subsequently the New Mexico Supreme Court reversed, basing its conclusions heavily upon the majority opinion of our Court in the case at bar.
These decisions are worthy of consideration, I think, at least in connection with the controlling question of whether in its enactment of this statute, that reimbursement to the public utilities by the State for the “non-betterment” expenses incurred in moving these facilities is founded on equity and justice and, therefore, not in contravention of Article 2, Section 31 under the holding of our own decisions in Baker v. Hickman County, 164 Tenn. 294, 308-309, 47 S.W.2d 1090, and Oehmig v. City of Chattanooga, 168 Tenn. 618, 624, 80 S.W.2d 83.
The majority opinion cites the Kentucky case therein mentioned. But in so doing, it was, in my opinion, begging the question. The Kentucky Court was not passing upon the constitutionality of a statute tested by a non lending of credit clause thereof. It was simply declaring the obligation of the utilities under the common law to move their facilities when their presence on the highway proved an obstruction in the rebuilding, etc. thereof. No one gainsays the soundness of such holding. But that has no bearing on the question here, towit, the constitutionality of our Chapter 170, Acts of 1957. I am informed that the Kentucky Legislature subsequently enacted a re-im-bursement statute the equivalent of our Chapter 170. But, I have not checked this since it, standing alone, is not very material to our question.
The basis of the conclusion of the majority opinion is that the expenditure for the moving of the facilities of *228the utilities is not for a state purpose because, so the majority says, “the primary purpose served by the expenditure is for the convenience and benefit of the utilities’ In my opinion, that statement cannot successfully withstand analysis.
These various utilities now have their facilities on the rights-of-way of roads and streets by virtue of statutes and ordinances. By way of illustration, the telephone companies are there by virtue of Code Section 65-2105 because they are “transmitting intelligence”. The State is most certainly interested in the rapid transmission of intelligence, news, etc. to its citizens. These benefits to the state, as observed in my original dissenting opinion, are noted in detail in Frazier v. East Tennessee Telephone Co., 115 Tenn. 416, 424, 425, 90 S.W. 620, 3 L.R.A., N.S., 323. The Minnesota case especially so comments on this particular benefit to the State, viz.:
“Clearly since the Cater decision in 1895 [Cater v. Northwestern Tel. Exchange Co., 60 Minn. 539, 63 N.W. 111, 28 L.R.A. 310], Minnesota has been definitely committed to the view that the use of rights-of-way by utilities for locating their facilities is one of the proper and primary purposes for which highways are designed even though their principal use is for travel and the transportation of persons and property. Furthermore, the import of that decision is a clear recognition that the use of highway rights-of-way for the transmission of public intelligence and public utility services confers important and direct benefits upon the public and that such use is not solely for the benefit and convenience of the utilities. The soundness of the view that the placing of utility facilities upon a right-of-way is one of the *229proper uses of a highway benefiting the public is emphasized by the fact that convenience and economy result therefrom to utility users, who are usually located near highways, and by the further fact that, it is in the interest of the public welfare — in the view of our ever-increasing population — to make full and efficient use of the land surface occupied by public roads. ’ ’
Moreover, the utilities, having thus acquired by legislative enactment and ordinance the right to place its facilities upon the highways and streets, have thereby acquired “an easement, and as such is a property right * * * entitled to all of the constitutionl protection afforded other property rights and contracts”. City of Chattanooga v. Tennessee Electric Power Co., 172 Tenn. 524, 537, 112 S.W.2d 385, 390.
Therefore, no citation to a decision of Court is necessary to verify the statement that a State has not the authority to arbitrarily order such utility to remove its facilities from such right-of-way. Its right to require such removal is based upon its police power when such removal becomes necessary in the rebuilding, enlarging, etc. of the public highway, or for other similar reason. To assert, therefore, that the removal of these facilities of the utilities from the right-of-way for such a reason is not for a state purpose is, in my opinion, to assert that which does not square with every day logic.
Nor can I agree with the statement in the majority opinion that “the primary purpose” of such moving of the facilities of the utility “is for the convenience and benefit of the utilities ’ ’. To ask in what manner they are convenienced is, ver se, to suggest the answer that they *230are not convenienced in any manner by being required to move tbeir facilities.
And as to the alleged “benefit”, to say that the utilities are benefited by such removal is to ignore the fact that reimbursement to the utility for the removal of its facilities is confined to such expense as is “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”. So it is that the “utilities ’ right to reimbursement is limited to non betterment costs”. (Emphasis supplied.) How, then, can the utility be benefited by being required to remove its facilities from the right-of-way? It has gained absolutely nothing.
By implication the original majority opinion seems to recognize it to be a fact that the constitutional prohibition against lending the state’s credit would not be violated in this case if the statute were based upon the fact that it is in accord with justice and equity. I say this because the majority opinion, after reciting that the New York case of Oswego S. R. v. State, 226 N.Y. 351, 124 N.E. 8, was correct in upholding the statute there involved because “the facts in the Oswego case showed that equity did demand that the state step in and do equity”, then asserts that “we have no question of equity in the present case ’ ’, meaning the case at bar. I am unable to draw any distinction between the case at bar and the Oswego case, supra.
As noted in my original dissent, the United States Congress thought that equity and justice required that the utilities be reimbursed to the extent of their non-betterment,costs in the removal of their facilities from these *231rights-of-way. It thought that this “program on an unprecedented scale” in the building of interstate highways subjected these utilities to “a tremendously different treatment” from that ever theretofore contemplated, and that the sum total of such costs might be beyond “the reach of the utilities’ ability to fund the same, whether the utility was publicly, privately or cooperatively owned”. The Courts of every State, except ours, and New Mexico, which followed our opinion, which have passed upon the question have been of the opinion that there is a rational basis in justice and equity for the reimbursement to the utilities of such non-betterment costs.
If all this were not enough to persuade the majority of this Court that regardless of individual views, there is a justification for thinking that there is a rational basis in justice and equity for the enactment by the Legislature of Chapter 170, as so many Courts and legislative bodies seem to think, then, in addition, this majority, it seems to me, must nevertheless take judicial knowledge of the fact that the tremendous costs of such removal of its facilities upon so gigantic a scale threatens many of our weaker utilities with bankruptcy if it has to pay this never before contemplated bill, and will place a never contemplated burden upon the financially stronger utilities who must pay the costs thereon in materially increased rates to those who are compelled to use its services, while such rate users in the other states except New Mexico are relieved of this additional burden.
All this, it seems to me, compels the conclusion that at least this is a justification for concluding that there is a rational basis in justice and equity for the enactment of *232this statute reimbursing the utilities to the extent of non-betterment costs, reg’ardless of whether we individually disagree with that conclusion.. And, it being a reasonable conclusion that there exists a rational basis in justice and equity for such reimbursement, unless a great lot of Courts and legislative bodies are intellectually arbitrary in their thinking, this Court, in my opinion, is trespassing upon the prerogatives of the legislative branch of our government in striking down such statute because it does not agree with the view of the legislature that it is just and equitable to reimburse these utilities.
I am persuaded that the majority, in reaching its conclusion, was unconsciously, at least, influenced by assuming in its original opinion that:
“ * * * it was necessary for the State to appropriate and raise large sums of money, necessitating the enactment of Chapter 264, Public Acts of 1957, authorizing the State Funding Board to tissue bonds in the amount not exceeding $30,000,000.00,- that the department has estimated that the cost of relocating utility facilities in connection with interstate highway projects in Tennessee will amount to $15,370,000.00, which is more than one half of the amount which the Legislature authorized the State to borrow for highway purposes under said Chapter 264, Public Acts of 1957 ’ ’.
The majority of my brothers must have then overlooked the fact that if our Chapter 170 is adjudged constitutional with the result that the State will, to the extent of the non-betterment costs, reimburse the utilities for the moving of their facilities, that then the United States Government will pay, or reimburse the State, to the extent of 90% of such costs. That is, if the costs of such moving is $15,-*233370,000, as stated in the original opinion of the majority, then 90% thereof will he paid by the United States Grov-ernment, and 10% by the State. The result would be that the entire costs to the State would be about one and one-half million dollars instead of $15,370,000.
But with the adjudging of our Chapter 170 unconstitutional, the users of the utilities in Tennessee will, in the end, be compelled to pay in increased rates the entire $15,370,000, except as to such of the utilities as are forced out of business by reason of being required to pay such costs.
But still another burden will be added to the rate payers in Tennessee, — and they compose about all of our people. It is summed up in the Pennslyvania case of Department of Highway v. Pennslyvania P. U. Comm., 185 Pa.Super. 1, 136 A.2d 473, 477, as follows:
“* * * Thus, if state ‘A’ receives from the federal government 90% of the cost of other utility relocations of inter-state highways because the policy of that state is to bear this cost, while state ‘B’ receives nothing from the federal government for utility relocations because its policy is not to bear this cost, the citizens of state ‘B’ will pay on their utility bills for utility relo-cations in their state, and will also pay in their federal gasoline tax for a part of the cost of relocating utilities in state ‘A’.”
This, in my opinion, is another reason that Chapter 170 of the Acts of 1957 has a basis in justice and equity and, therefore, for this reason, if for no other, is not contrary to Article 2, Section 31 forbidding this State from lending its credit in aid of any person, association, company, corporation or municipality. Such a situation is not *234the lending of its credit nnder our decisions hereinbefore mentioned: — Baker v. Hickman County and Oehmig v. City of Chattanooga, supra. There is, I think, no way to avoid the conclusion that the majority opinion simply overrules Baker v. Hickman County and Oehmig v. City of Chattanooga.