State ex rel. McCann v. City of Defiance

• Decision Date: 19 February 1958
• Docket Number: No. 35284,35284
• Citation: 148 N.E.2d 221,167 Ohio St. 313,4 O.O.2d 369
• Parties: , 4 O.O.2d 369 The STATE ex rel. McCANN, Appellant, v. CITY OF DEFIANCE et al., Appellees.
• Court: Ohio Supreme Court

Page 313

167 Ohio St. 313

148 N.E.2d 221, 4 O.O.2d 369

The STATE ex rel. McCANN, Appellant, v. CITY OF DEFIANCE et al., Appellees.

No. 35284.

Supreme Court of Ohio.

Feb. 19, 1958.

Syllabus by the Court.

1. The General Assembly has no power to enact any statute for the purpose of limiting or restricting by regulation or otherwise the power and authority of a municipality, that owns and operates a public utility for the purpose of supplying the product thereof to such municipality or its inhabitants, to sell and deliver to others the portion of the surplus product of such utility that it is authorized by Sections 4 and 6 of Article XVIII of the Constitution to sell and deliver to such others. Swank v. Village of Shiloh, 166 Ohio St. 415, 143 N.E.2d 586; Village of Euclid v. Camp Wise Ass'n, 102 Ohio St. 207, 131 N.E. 349, and Board of Education etc. v. City of Columbus, 118 Ohio St. 295, 160 N.E. 902, approved and followed. City of Akron v. Public Utilities Commission, 149 Ohio St. 347, 78 N.E.2d 890; City of Cincinnati v. Roettinger, 105 Ohio St. 145, 137 N.E. 6; City of Lakewood v. Rees, 132 Ohio St. 399, 8 N.E.2d 250; Hartwig Realty Co. v. City of Cleveland, 128 Ohio St. 583, 192 N.E. 880, and Travelers Ins. Co. of Hartford Conn. v. Village of Wadsworth, 109 Ohio St. 440, 142 N.E. 900, distinguished.

2. To the extent that Section 743.13, Revised Code, requires a municipality to furnish water to noninhabitants of such municipality or limits the price which such municipality may charge for such water, such statute is unconstitutional and void.

Karl H. Weaner, Jr., and John W. Winn, Defiance, for appellant.

Charles A. Bakle, City Sol., and Alner D. Ryan, Defiance, for appellees

TAFT, Judge.

Relator instituted an original mandamus action in the Court of Appeals for Defiance County to compel the city of Defiance, which is a noncharter municipal corporation and is herein referred to as the city, to issue a permit to tap into a water line and furnish water service to relator's premises from the municipal waterworks system owned and operated by that city, 'at a rate not in excess of' that permitted or provided by Section 743.13, Revised Code.

Relator bases her right to the relief sought on Section 743.13, Revised Code, which reads:

'When any person at his own expense has laid down and extended mains and water pipes or electric light and power lines beyond the limits of a municipal corporation, and the legislative authority thereof, by resolution, has authorized the proper officer of the waterworks to superintend or supervise such laying and extension, the municipal corporation shall furnish water or electricity to the residents and property holders on the line of such facilities. The same rules and regulations which govern the furnishing of water or electricity to its own citizens shall apply in such cases, except that the rates charged therefor shall not exceed those within the municipal corporation by more than one tenth.'

In 1956, American Louisiana Pipe Line Company had 'at' its 'own expense * * * laid down and extended mains and water pipes' to its compressor station about four miles 'beyond the limits of' that city, 'and the legislative authority thereof, by resolution,' had 'authorized the proper officer of the waterworks to superintend or supervise such laying and extension.' Relator is a resident and property holder 'on the line of such facilities.'

The Court of Appeals determined that, if the above statute is constitutional, relator is entitled to the relief which she seeks, but it held that that statute is unconstitutional because it conflicts with the provisions of Section 4 of Article XVIII of the Ohio Constitution, which reads:

'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.'

The cause is now before this court on appeal from the judgment of the Court of Appeals denying a writ of mandamus.

Besides Section 4 of Article XVIII of the Ohio Constitution, it is appropriate to consider Section 6 of that article in deciding this case. The latter section reads:

'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 50 per centum of the total service or product supplied by such utility within the municipality.'

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. Swank v. Village of Shiloh, 166 Ohio St. 415, 143 N.E.2d 586; Village of Euclid v. Camp Wise Ass'n, 102 Ohio St. 207, 131 N.E. 349; Board of Education, etc. v. City of Columbus, 118 Ohio St. 295, 160 N.E. 902; Board of Education, etc. v. Village of Willard, 130 Ohio St. 311, 199 N.E. 74. See City of East Cleveland v. Board of Education, 112 Ohio St. 607, 148 N.E. 350; and Pfau v. City of Cincinnati, 142 Ohio St. 101, 50 N.E.2d 172.

However, relator contends that the General Assembly may require a municipality, in the operation of a public utility, to comply with a mere regulation reasonably designed to insure the nondiscriminatory service properly and regularly required from public utilities; and that Section 743.13, Revised Code, only represents such a regulation.

Relator argues that, in operating its waterworks pursuant to Article XVIII, the city is acting in a proprietary capacity; and that, in doing so, it is subject to the same restrictions and regulations as other like proprietors. City of Akron v. Public Utilities Commission, 149 Ohio St. 347, 78 N.E.2d 890; Butler v. Karb, 96 Ohio St. 472, 117 N.E. 953; Western Reserve Steel Co. v. Village of Cuyahoga Heights 118 Ohio St. 544, 161 N.E. 920. See Travelers' Ins. Co. of Hartford, Conn. v. Village of Wadsworth, 109 Ohio St. 440, 142 N.E. 900, 33 A.L.R. 711, and State ex rel. White v. City of Cleveland, 125 Ohio St. 230, 181 N.E. 24, 86 A.L.R. 1172.

It would ordinarily be the duty or the right of a government to provide those facilities to the public that are provided by a public utility. Hence, such government usually grants to a public utility providing those services certain governmental powers, rights and privileges, such, for example, as the right of eminent domain and protection from competition; and by reason thereof, the public utility is subject to governmental restraints designed to protect the public from any abuse of such powers, rights and privileges. Such restraints may ordinarily be imposed either by the judicial or legislative authority of the government involved. Scofield v. Lake Shore & M. S. Railway Co., 43 Ohio St. 571, 593, 3 N.E. 907, 57 Am.Rep. 846.

With respect to a municipally operated public utility, the municipality's powers, rights and privileges are derived directly from the people, pursuant to the provisions of Sections 4 and 6 of Article XVIII of the Constitution, and not from the General Assembly. Nothing is said in the Constitution to indicate that the powers, rights and privileges so conferred upon municipalities are to be subject to any legislative power other than that conferred by the various sections of Article XVIII of the Constitution (see, in addition to Sections 4 and 6, Sections 3, 7 and 13). Hence, it would appear that the General Assembly has no power to limit or restrict, by regulation or otherwise, the power and authority of a municipality to operate a public utility for the purpose of supplying the product thereof to such municipality or its inhabitants, or selling and delivering to others some of the surplus product thereof, pursuant to the provisions of Sections 4 and 6 of Article XVIII.

The opinions and syllabi in some of the cases referred to in this opinion have language in them tending to indicate that the General Assembly may merely regulate though not restrict or limit such municipal power. However, every regulation limits or restricts something. Hence, if a socalled 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...