City of Columbus v. Teater

• Decision Date: 29 March 1978
• Docket Number: No. 77-540,77-540
• Citation: 53 Ohio St.2d 253,7 O.O.3d 410,374 N.E.2d 154
• Parties: , 7 O.O.3d 410 CITY OF COLUMBUS, Appellee, v. TEATER, Director, Department of Natural Resources, Appellant. 1
• Court: Ohio Supreme Court

Page 253

53 Ohio St.2d 253

374 N.E.2d 154, 7 O.O.3d 410

CITY OF COLUMBUS, Appellee, v. TEATER, Director, Department of Natural Resources, Appellant. ¹

No. 77-540.

Supreme Court of Ohio.

March 29, 1978.

Syllabus by the Court

R.C. 1501.17 is not facially violative of Sections 3, 4, 5, 6, or 7 of Article XVIII of the Constitution of Ohio.

The instant controversy originated in the Court of Common Pleas of Franklin County. The following matters were agreed to before that court by the parties:

Appellant is the duly qualified and appointed Director of the Department of Natural Resources of the state of Ohio, and appellee is a chartered municipal corporation organized and existing under the Constitution and laws of this state;

Pursuant to R.C. Chapter 1501, appellant may designate any watercourse in this state to be a wild, scenic, or recreational river area, which in appellant's judgment possesses water conservation, scenic, fish, wildlife, historic, or outdoor recreational values which ought to be preserved. Appellant has determined that Big Darby Creek is to be designated a Scenic River Area from a point near a covered bridge on Old State Route 38 in Madison County, southward for approximately fifty-three and eight-tenths miles along said watercourse to its confluence with the Scioto River. The above-referenced portion of Big Darby Creek qualifies as a Scenic River Area pursuant to R.C. 1501.16. Appellant has manifested his intent to designate this portion of Big Darby Creek a Scenic River Area and has so notified appellee;

Appellee provides its inhabitants with water supply facilities and services, and in so doing operates a public utility. Appellee has instituted a program for the construction, operation and maintenance of a new water supply reservoir to be located on Big Darby Creek within the area proposed by appellant for designation as a Scenic River Area. Appellee has appropriated portions of the necessary funds for this water supply program and has expended certain of these funds in acquisition of land and in feasibility studies in furtherance of the program;

The construction of the water supply reservoir will cause a modification of the channel of Big Darby Creek and will result in the erection of structures on the Big Darby Creek within the proposed Scenic River Area.

In addition to the facts stipulated, it is undisputed that the instant controversy originally was instituted because appellant, on or about February 6, 1974, notified appellee's mayor of appellant's intent to journalize the determination that the Big Darby Creek meets the criteria for designation as a scenic river pursuant to the provisions of R.C Chapter 1501. The area is outside appellee's present corporate boundaries.

The Court of Common Pleas declared R.C. 1501.17 violative of the Constitution of Ohio. Upon appeal by the Director to the Court of Appeals for Franklin County, the judgment of the Court of Common Pleas was affirmed.

The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.

John L. Francis, City Atty., Robert A. Bell and Earl J. Silberman, Columbus, for appellee.

William J. Brown, Atty. Gen., Bruce E. Cryder and E. Dennis Muchnicki, Asst. Attys. Gen., for appellant.

HERBERT, Justice.

R.C. 1501.17 provides:

"No state department, agency, or political subdivision may build or enlarge any highway, road, or structure or modify or cause to modify the channel of any watercourse within a wild, scenic, or recreational river area outside the limits of a municipal corporation without having first obtained approval of the plans for such highway, road, or structure or channel modification from the director of natural resources. The common pleas court having jurisdiction shall, upon petition by the director, enjoin work on any highway, road, or structure or channel modification for which such approval has not been obtained."

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

Section 3 of Article XVIII:

"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

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 5 of Article XVIII:

"Any municipality proceeding to acquire, construct, own, lease or operate a public utility, or to contract with any person or company therefor, shall act by ordinance and no such ordinance shall take effect until after thirty days from its passage. If within said thirty days a petition signed by ten per centum of the electors of the municipality shall be filed with the executive authority thereof demanding a referendum on such ordinance it shall not take effect until submitted to the electors and approved by a majority of those voting thereon. The submission of any such question shall be governed by all the provisions of section 8 of this article as to the submission of the question of choosing a charter commission."

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 percent of the total service or product supplied by such utility within the municipality, provided that such fifty percent limitation shall not apply to the sale of water or sewage services."

Section 7 of Article XVIII:

"Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."

The main question to be decided in this appeal is whether R.C. 1501.17, on its face, necessarily violates any or all of the foregoing constitutional provisions.

The police power ² and the power of local self-government are constitutional grants of authority equal in dignity. The state may not restrict the exercise of self-government within a municipality. Furthermore, a municipality may exercise the police power within its borders. However, the general laws of the state remain supreme in the exercise of that power, even if the issue is one which might also be a proper subject of municipal legislation. Canton v. Whitman (1975), 44 Ohio St.2d 62, 66, 337 N.E.2d 766, appeal dismissed, 425 U.S. 956, 96 S.Ct. 1735, 48 L.Ed.2d 201 (1976).

In contending that the preservation of certain of the state's rivers is a valid exercise of state police power, appellant relies upon Section 36 of Article II of the Constitution of Ohio, which provides: "Laws may * * * be passed * * * to provide for the conservation of the natural resources of the state, including streams * * *."

Appellee argues that since a city's authority to acquire a municipal public utility is derived directly from Article XVIII, the General Assembly may in no way restrict the exercise of such power. Appellee relies upon State ex rel. McCann v. Defiance (1958), 167 Ohio St. 313, 148 N.E.2d 221; and Swank v. Shiloh (1957), 166 Ohio St. 415, 143 N.E.2d 586.

In McCann, the relator had instituted an original mandamus action in the appellate court to compel the city of Defiance to issue a permit to tap into a water line, and to force the city to furnish water service to the relator's premises from the municipal water works system at a rate not in excess of that permitted by R.C. 743.13. ³ The appellate court determined that were R.C. 743.13 constitutional, the relator would have been entitled to her relief, but that R.C. 743.13 was unconstitutional as conflicting with Section 4 of Article XVIII. This court affirmed the appellate court judgment.

A passage in McCann, 167 Ohio St. at pages 316-17, 148 N.E.2d at page 224, explained:

"The opinions and syllabi in some of the cases * * * have language in them tending to indicate that the General Assembly may merely regulate though not restrict or limit * * * municipal power. However, every regulation limits or restricts something. Hence, if a so-called mere statutory regulation of the General Assembly limits or restricts a power conferred by Sections 4 or 6 of Article XVIII of the Constitution, it can be no more effective than any other statutory limitation or restriction of such a power."

But in holding that the General Assembly enjoys no power to enact any statute restricting by regulation the power of a municipality to operate a public utility and to deliver to others the portion of the surplus product of the utility that is authorized by Sections 4 and 6 of Article XVIII, McCann expressly recognized the retention by the state of its police power. ⁴ Immediately following the foregoing passage, McCann cites approvingly Akron v. Pub. Util. Comm. (1948), 149 Ohio St. 347, 78 N.E.2d 890, wherein this court had held that the commission had authority to restrict and regulate a gas company's supplying of natural gas: "In doing so, this court recognized the Public Utilities Commission order as an exercise by the state of its general police power." McCann, supra, 167 Ohio St. at page 317, 148 N.E.2d at page 224.

In Whitman, supra (44 Ohio St.2d 62), at page 67, 337 N.E.2d 766, this court cited McCann for the...