### 79-24- IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

YELLOWSTONE VALLEY ELECTRIC COOPERATIVE, INC., a corporation, Plaintiff and Appellant, THE MONTANA POWER COMPANY, 

### a corporation, Intervenor and Appellant,

DUANE OSTERMILLER,THE MILWAUKEE MOTOR TRANSPORTATION CO., a colrporation, and GETTER TRUCKING, INC., a corporation, Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, County of Yellowstone. Honorable Charles Luedke, Judge presiding. Counsel 

### of Record: For Appellants: Olsen, Christensen & 

### Gannett, Billings,Montana Paul Olsen argued, Billings,Montana John Carl argued, Butte, Montana For Respondents: Anderson, Brown, Gerbase, Cebull & 

### Jones,Billings,

Montana Joseph Gerbase argued, Billings,, Montana Mike Greely,Attorney General, Helena, Montana

Submitted: February 22, 1980 ~ecided 

### :MAk

## 2 

# 198aMr. Justice John Conway Harrison delivered the Opinion of the Court.

c his 

### is an appeal from a portion of a judgment of 

### a Yellowstone County DistrictCourt ruling that section 69-4- 603, MCA, does not constitute 

### a taking of property without due process though it requires electricutilities and rural electric cooperatives toprovide wire-raising services without reimbursement. Plaintiff-appellant, Yellowstone Valley Electric Cooperative, Inc. 

### isa rural electric cooperative providing electric service torural customers by means of an electric transmission and distributionnetwork. Many of the lines constituting this network crosspublic highways and streets. Respondents each conduct enterprises involving the moving of oversized equipment or structuresupon public highways and streets. The moving activities of respondents often require the raising of electric transmission lines. Section 69-4-603, MCA, provides thatutilities and cooperatives are required toraise or remove their transmission and distribution lines, when oversized equipment and structures aremoved, in order to facilitatethe passage of such oversized loads. Plaintiff petitioned the Yellowstone County District Court for declaratory relief regarding respondents' moving enterprises. Plaintiff sought tohave section 69-4-603, MCA, declared unconstitutional 

### as a denial of equal protection and due process. The Montana Power Company was granted permission to intervene and alsopetitioned for similar declaratory relief. An evidentiary hearing 

### was waived by the parties and briefs 

### were submitted to the court. On September 10, 1979, the District Court ruled that a portion of the challenged statuteviolated equal protection require-ments and was, therefore, unconstitutional. The unconstitutional portion of the statutewas a 1951amendment which provided thatpersons, firms, or corporations engaged in moving oversized structureswithin the 

### limitsof a cityor town pay allnecessary and reasonable expenses of raising or cutting

### wires and removing poles. The amendment was held unconstitutional because 

### it differentiated between inside and outside cityor town 

### limits with respect to costs. While determining thisportion of the statuteunconstitutional, the court alsoheld that the remaining portions of the statute continued in full force and effect. Without the unconstitutional proviso, the statute returned to 

### itspre-1951 amendment posture and was interpreted by the DistrictCourt asrequiring utilities and cooperatives toprovide wire-raising and cutting service without reimbursement inallcircumstances. It 

### is from this interpretation thatplaintiff and intervenor appeal. Three issues areraised for our consideration upon appeal: (1) Was the DistrictCourt correct ininterpreting section 69-4-603, MCA, asrequiring utilities and cooperatives in allcircumstances toprovide wire-raising and cutting serviceswithout reimbursement? (2) Does section 69-4-603, MCA, unconstitutionally allow property tobe taken for the private use of a private party? (3) Is section 69-4-603, MCA, unconstitutional because it is an unreasonable exerciseof the police power? Section 69-4-603, MCA, is set forthbelow in its en.tirety with the 1951amendment, which 

### was held unconstitutional by the DistrictCourt, underscored:

### "(1) It 

### shall then be the duty of any person, 

### firm, orcorporation owning or operating said poles orwires after service of notice, as 

### required by 69-4-602, to furnish competent workmen or linemen toremove suchpoles orraise orcut such wires as

### willbe necessary to facilitate removing such house, building, derrick orother structure. "(2)No person, 

### firm, or corporation engaged in moving any house, building, derrick, or other structure shall raise, cut or inany way interferewith any such poles orwires, 

### unless the persons or authorities owning or having control of the same shall refuse to do so after having been notified, asrequired by 69-4-602; then, only competent and experienced workmen or linemen shallbe employed insuch work, and insuch case the necessary and reasonable expense shall be paid by the owners of the poles and wires handled; provided, however, -- 

### that any person, firm or corporation engaged inmoving such strut

## -- turewithin the limitsof anycityor town shall 

### --- 

## -- pay allnecessary and reasonable expense of 

### -- 

## - 7 

### raising

# or cuttinq such 

### wiresorremoving such poles. The work shallbe donein a careful and workmanlike manner, and the poles and 

### wires shallbe promptly replaced and damages thereto promptly repaired." The DistrictCourt inthiscase characterized the above statuteasan exerciseof the police power, and, accordingly, held that theburden of any expenses created by the statute could be imposed upon utilitiesand cooperatives without reimbursement. Inreaching its

### conclusion, the courtnoted that the statute "was 

### part of a 1929 enactment 

# . . . which made no express provision as towho 

### was to stand the cost of wire-raising servicesexcept inthe instance when themover did the work because of the owner's refusal todo it 

### when properly requested." Faced with determining the question of costswhere there was owner compliance, however, the court found that costs could be imposed upon utilitiesand cooperatives because the statutewas an exerciseof the

### police power. There was 

### no need for compensation. The District Court, speaking of the statute, stated:

# ".



# . . Having the purpose of preventing uncontrolled and unsafe interference with electric service, it 

### is

### wellwithin the 

### limitsof 

### a permissible exercise of police power. As such, the fact that it results inan imposition upon the use of the utilityowner's property or imposes a burden of expense upon the utility does not in itself violate due process or constitute the taking of private property for public purposes without just compensation. 

# . ." Appellant and intervenor attack the holdings of the DistrictCourt here on two alternative constitutional grounds. On one hand, they argue that, if the statute

### isan exercise of the police power, 

### it 

### isunconstitutional because 

### it 

### is an unreasonable regulation: 

### it unreasonably and arbitrarily imposes costsupon partieswhich do not occasion the need for raising or cuttingelectric transmission lines. It 

### is contended that 

### it 

### ismore reasonable to impose costs upon themovers and their clients. Alternatively, appellant and intervenor argue that the statute 

### isunconstitutional because it allows for 

### a "taking" of utilityproperty for the private use of another. It 

### is submitted that the activity of wire-raising or cutting constitutes 

### a temporary deprivation of property which 

### isconducted solely for the benefit of moving companies and their clients. The statute, therefore, 

### isan unconstitutional exercise of the power of eminent domain. The threshold inquiry inconsidering these arguments 

### is indetermining whether section 69-4-603, MCA, 

### is an exercise of the police power or, rather, sounds inthe principles of eminent domain. The police power of the state, of course, 

### is thatwhich enables states topass regulations for the health, safety and general welfare of the people. N. 0. Public ServiceComrn. 

### v. New Orleans (1930), 281 U.S. 682, 50 S.Ct. 449, 74 L.Ed. 1115; Statev. Penny (1910), 42 Mont. 118, 111P. 727; Billings Properties, Inc. v. YellowstoneCo. (1964), 

### 144Mont. 25, 394 P.2d 182. In the exercise of the police power, due process requirements of the Fourteenth Amendment may be 

### metwithout just compensation. Eminent domain, however, 

### is the right of the state to take private property forpublic use. Helena Power Transmission Co. v. Spratt (1907), 35 Mont. 108, 88 P. 773; section 70-30-101, MCA. In the exercise of the power of eminent domain, just compensation 

### is required. In determining whether our statute

### is an exercise of the police power oreminent domain, 

### we note a splitof authority among other jurisdictions facing the same issue with respect to 

### similar statutes and ordinances. See Annot., 83 A.L.R.2d 464 (1962). In one lineof 

### cases, ordinances and statutes allowing for the adjustment of wires and poles inmoving oversized objects have been upheld asvalid exercises of the police power. See, Missouri Pac. Ry. v. Sproul (Kan. 1916), 162 P. 293; Statev. Omaha & C. B. St. Ry. Co. (Neb. 1916), 161N.W. 170; Weeks v. Carolina Tel & Tel. Co. (N.C. 1915), 84 S.E. 812; Indiana Ry. Co. v. Calvert (Ind. 1907), 80 N.E. 961. The moving of buildings and other oversized objects inthese cases has been recognized as

### a reasonable and necessary public use, and the rights of the people touse the streetshave been held superior to the rights of utilities to locate their facilities upon such 

### streets. In another lineof cases, ordinances and statutes have been held tobe takings under the law of eminent domain. Ex Parte Ashworth (Ala. 1920), 86 So. 84; Edison Elec. Light & Power Co. of St. Paul v. ~lomquist (Minn. 1911), 185F. 615; Kibbie Tel. Co. v. Landphere (Mich. 1908), 115 N.W. 

### 244; Northwestern Tel. Exch. Co. v. Anderson (N.D. 1904), 98 N.W. 706. In these cases, the moving of oversizedobjects has been held tobe a use which 

### isprivate, permissive, and extraordinary, conducted only for the benefit of 

### a

mover and his client and subject to the vested and superior rights of utilities. Having reviewed these authorities, 

### we find that our statute

### is an exerciseof the police power and does not sound ineminent domain. The District Court's characterizationof section 69-4-603, MCA, 

### was correct: the statute

### is

a regulation enacted by the legislature inthe exercise of the police power aimed 

### atprotecting the public health, safety and general welfare. Here, the statute serves several vitalpublic interests. First, public safety 

### is concerned. The statute 

### is an obvious attempt to avoid the occurrence on the part of the general public of high voltage electrical accidents. The statute states that "only competent and experienced workmen or linemen" may raise or cut

### wires. Second, the statute confers a public benefit. Where the statuteprovides for a controlled method of accommodating a mover's need so that there 

### isprompt replacement and repair, there 

### isminimal interference inproviding electrical 

### service to the public. Third, the public interest 

### is also served inthat the statuteallows for 

### a reasonable and necessary public use, the moving of oversized objects upon the public highways of the state. Finally, the statute recognizes the right of the public to use the highways. See, Hawn 

### v. Kansas Gas & Electric Co. (Kan. 1927), 252 P. 245; Sipultv. City of Pratt (Kan. 1949), 212 P.2d 221. The statute does not involve the appropriation of 

### a property right or a 'taking' under the laws of eminent domain in any traditional sense. In locating their faci-litiesupon a public right-of-way, utilities and cooperatives are conferred a property right which, by 

### itsvery nature, 

### is subject toother competing franchises and privileges. The easement which 

### isobtained 

### isnot an absolute property right; there 

### isno right conferred upon utilities to have their facilities occupy a particular location. New Orleans Gaslight Co. v. Drainage Comr~~'s of New Orleans (1905), 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Jones v. Burns (1960), 138Mont. 268, 357 P.2d 22. Where other competing interests and franchises become involved, a utilitymay be forced togive up a particular location of 

### its facilities, and reasonable interferencemay be necessary and proper. Southern BellTel. & Tel. Co. v. Williams Bros. (La.cw 1932), 

### 141So. 835. The statute 

### is therefore an exerciseof the police power and eminent domain 

### is inapplicable. Appellant and intervenor urge that the statute

### isunconstitutional even if 

### it 

### is deemed an exerciseof the police power. They contend that the statute 

### isan unreasonable regulation because 

### it arbitrarily imposes the costs of wire-raising and cutting upon partieswho do not occasion the need for that activity. They submit that it would be much more reasonable torequire respondents and their clients topay for the costs of wire-raising and cutting. It 

### is

### well established that a police power regulation must be reasonably adapted to 

### itspurpose and must injure or impair property rights only tothe extent reasonably necessary topreserve the public welfare. Garden SpotMarket, Inc. v. Byrne (1963), 141Mont. 382, 378 P.2d 220; Freeman v. ~oard of Adjustment (1934), 97 Mont. 342, 34 P.2d 534. he standard of reasonableness is the constitutionalmeasure of theproper exercise of the police power. Billings Properties, Inc. v. Yellowstone Co., supra; Bettey v. City of Sidney (1927)

## , 79 Mont. 314, 257 P. 1007; Leischner 

### v. City of ~illings (1959), 135Mont. 109, 337 P.2d 359. It is also 

### well settled that, asa general rule, actsconducted inthe proper exercise of police power do not constitute a taking of property and do not entitle the owner of such property to compensation for the regulation or impairment thereof. Compensation 

### is due, however, in cases which exceed regulation or impairment and there isanappropriation of property which amounts to a taking or deprivation of property for public use. 16 Am.Jur.2d Constitutional Law S586. In this case, the lines of a utilityor cooperative are momentarily raised or severed to allow the passage of buildings or other oversized objects upon the public 

### streets. Though there may be a temporary interference or interruption tocustomer service and inconvenience or hardship to the utility, the property of the utility or cooperative is inno way condemned inany permanent sense. Appellant and intervenor rely on two cases for the proposition that a temporary deprivation of property may constitute a "taking". See, Fuentes v. Shevin (1972), 407 U.S. 67, 92 Sect. 1983, 32 L.Ed.2d 556; Sniadach 

### v. Family Finance Corp. (1969), 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d Those cases, however, involve personal property being attached under garnishment or replevin statutes simply upon an exparte application to a court clerk without a hearing and 

### are factually distinguishable from the situation here. In this
case, the statute amounts to a regulation or an impairment of utility property and not an actual taking or appropriation of property for the private use of another.We find, therefore, that the statuteis a reasonable exercise of the police power. Further, 

### we find that it is not unreasonable to impose the costs of wire-raising or cutting upon utilitiesand cooperatives. Imposing costs upon utilitiesand cooperatives isperhaps themost effectiveway of spreading the burdens created by the statute. In thisway, consumers shareboth the burdens and the general benefits which the statuteintended and 

### is calculated to

secure. Imposing costsupon respondents and othermoving companies would be too burdensome and would, ineffect, make the activityof moving buildings and other oversized objects cost-prohibitive. Accordingly, 

### we affirm the judgment of theDistrictCourt.

Weconcur: 

# C/

Chief Justice 

# Qdh% Justices