Board of County Com'rs of Delaware County v. City of Columbus

• Decision Date: 25 August 1986
• Docket Number: No. 85-961,85-961
• Parties: , 26 O.B.R. 154 BOARD OF COUNTY COMMISSIONERS OF DELAWARE COUNTY, Appellee, v. CITY OF COLUMBUS, Appellant.
• Court: Ohio Supreme Court

Page 179

26 Ohio St.3d 179

497 N.E.2d 1112, 26 O.B.R. 154

BOARD OF COUNTY COMMISSIONERS OF DELAWARE COUNTY, Appellee, v. CITY OF COLUMBUS, Appellant.

No. 85-961.

Supreme Court of Ohio.

Aug. 25, 1986.

W. Duncan Whitney, Pros. Atty., for appellee.

Ronald J. O'Brien, City Atty., Riley, Ucker & Lavinsky Co., L.P.A., and Daniel W. Drake, Columbus, for appellant.

PER CURIAM.

The main question to be decided on this appeal is whether the city, acting pursuant to its Article XVIII "utility" powers, may construct the proposed sewer lines here at issue without first complying with the limitations contained in R.C. 6117.01.

The provisions of the Ohio Constitution primarily concerned in this cause are:

Section 4 of Article XVIII:

"Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility."

Section 6 of Article XVIII:

"Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the municipality or its inhabitants, may also sell and deliver to others any transportation service of such utility and the surplus product of any other utility in an amount not exceeding in either case fifty per cent of the total service or product supplied by such utility within the municipality, provided that such fifty per cent limitation shall not apply to the sale of water or sewage services."

R.C. 6117.01 provides, in material part:

"For the purpose of preserving and promoting the public health and welfare, boards of county commissioners may by resolution lay out, establish, and maintain one or more sewer districts within their respective counties, outside of municipal corporations, and may have a registered professional engineer make such surveys as are necessary for the determination of the proper boundaries of such district. * * The board may adopt, publish, administer, and enforce rules for the construction, maintenance, protection, and use of sewers and sewer improvements in its county outside of municipal corporations, and of sewers and sewer improvements within municipal corporations in its county wherever such sewers are constructed or operated by such board or discharge into sewers or sewage treatment plants constructed or operated by such board, including the establishment and use of connections. Such rules shall not be inconsistent with the laws of this state or the rules of the director of environmental protection. No sewers or sewage treatment works shall be constructed in any county outside of municipal corporations by any person, firm, or corporation until the plans and specifications for the same have been approved by the board, and any such construction shall be done under the supervision of the county sanitary engineer. * * * "

This court has often held that the General Assembly cannot impose any restrictions or limitations upon the power to "operate" a public utility granted to a municipality by Article XVIII of the Ohio Constitution. See, e.g., State ex rel. McCann v. Defiance (1958), 167 Ohio St. 313, 148 N.E.2d 221 . ¹ However, appellee contends, and we agree, that the power to regulate sewer districts "[f]or the purpose of preserving and promoting the public health and welfare," under R.C. 6117.01 constitutes a valid exercise of state police power. As we held in Columbus v. Teater (1978), 53 Ohio St.2d 253, 257, 374 N.E.2d 154 , "[t]he police power and the power of local self-government are constitutional grants of authority equal in dignity."

Therefore, R.C. 6117.01 is not facially violative of Sections 4 or 6 of Article XVIII of the Constitution of Ohio. Rather, the authority enjoyed by the city to construct sewer lines outside its corporate limits and the regulating authority of the county are of equal dignity. In such instance, "the judiciary must [ultimately] determine the facts in such controversies, balance the rights of the * * * [county] against those of the municipality and endeavor to protect the respective interests of each. * * * [T]he outcome of the constitutional argument involved will depend upon the facts and circumstances of the case." Teater, supra, at 261, 374 N.E.2d 154.

The courts below factually determined that the city's proposed sewer extension was not a "public utility" since it did not serve the inhabitants of the city, but only served the general public. Accordingly, they found that the utility powers constitutionally granted in Section 4, Article XVIII of the Ohio Constitution were not invoked and the general law set forth in R.C. 6117.01 prevailed.

The threshold question requires review.

A sewerage system owned and operated by a municipality for the benefit of its inhabitants is embraced within the term "public utility" in Sections 4 and 6 of Article XVIII of the Ohio Constitution. Britt v. Columbus (1974), 38 Ohio St.2d 1, 309 N.E.2d 412 . In Britt, Judge Stephenson, writing for the court, stated at 6, 309 N.E.2d 412:

"The importance to the City of possessing such authority by constitutional, rather than legislative, grant is that each of the constitutional sections relied upon has been held by this court to be self-executing and if eminent domain authority for the purposes here claimed exists by virtue of such sections the authority conferred is beyond the pale of the General Assembly to limit, restrict, condition, or otherwise control."

Although the Britt court found that the constitutionally granted utility power did not include the right of eminent domain over property located outside the corporate limits of a municipality, it did establish the self-executing nature of the utility powers of the city of Columbus which includes the operation of a sewerage system beyond the corporate limits of the city. Judge Stephenson in Britt, supra, further held at 8, 309 N.E.2d 412:

"Section 4, Article XVIII, is a constitutional grant of power to a municipality to 'acquire, construct, own, lease and operate within or without its corporate limits, any public utility the products or service of which is or is to be supplied to the municipality or its inhabitants.' A sewerage system owned and operated by a municipality for the benefit of its inhabitants is a public utility within the meaning of 'public utility' in Sections 4 and 6, Article XVIII. Mead-Richer v. Toledo (1961), 114 Ohio App. 369, 182 N.E.2d 846 . That it was so intended is evidenced by the removal of sewage services from the 50 percent limitation in Section 6 by amendment in 1959." (Emphasis sic.)

Appellant herein claims that Sections 4 and 6, Article XVIII of the Ohio Constitution authorize it to extend its sewerage system to replace an existing independent system which it operates on property owned by the municipality and which property is located at the Columbus Zoo.

Whether or not the zoo located outside the corporate limits serves the inhabitants of the city does not require in-depth consideration, although it was a pivotal question upon which the courts below decided the issue. The proposed extension of sewer services to the zoo complex is authorized, whether or not the inhabitants of the city are directly or indirectly served by the operation of the Columbus Zoo.

The constitutional provision is in the disjunctive when it provides services "to the municipality or its inhabitants." We conclude that the municipally owned property located outside the corporate boundaries, if it is to be served by a sewerage system, falls squarely within the constitutionally granted "utility" powers of the city. The sewerage system serves the municipality as it serves municipally owned property; the functions performed thereon are deemed to be appropriate municipal functions of the city.

Here, municipal ownership of the land and any reasonable need to provide sewer service to the land are sufficient to invoke the constitutionally granted municipal "utility" powers.

Having concluded that the city's proposal to extend the sewer service and connect the new complex to the existing sewerage system of the city is within the power of the city of Columbus, it is necessary to address the origin of those powers conflicting with those sought to be exercised by the city.

The county asserts that by enactment of R.C. 6117.01 the legislature has delegated to it the privilege to exercise the state police power which is paramount, and since said section requires approval by the county commissioners, it is entitled to injunctive relief.

It is fundamental that the protection and preservation of the public health is a prime governmental concern and thus a function of the state. State ex rel. Mowrer v. Underwood (1940), 137 Ohio St. 1, 27 N.E.2d 773 . It is equally well-established that the state can directly exercise its police power concerning public health or it may delegate that power to other governmental agencies. Ex parte Company (1922), 106 Ohio St. 50, 139 N.E. 204; DeMoise v. Dowell (1984), 10 Ohio St.3d 92, 93-94, 461 N.E.2d 1286.

"While it is true that the legislature has delegated some authority regarding sewers under R.C. Chapter 6117, the General Assembly has also enacted an alternative and more comprehensive scheme of delegation of authority concerning public health." DeMoise, supra, at 94, 461 N.E.2d 1286.

Although Justice William B. Brown in DeMoise was writing in regard to the relationship of R.C. Chapter 6117 and R.C. 3701.13, the analogy to the county's right to establish a sewer district and regulate the same is applicable to this cause. The state has...