State ex rel. Toledo Edison Co. v. Clyde
Decision Date | 28 August 1996 |
Docket Number | No. 95-1358,95-1358 |
Citation | 76 Ohio St.3d 508,668 N.E.2d 498 |
Parties | , Util. L. Rep. P 26,559 The STATE ex rel. TOLEDO EDISON COMPANY, Appellant, v. CITY OF CLYDE et al., Appellees. |
Court | Ohio Supreme Court |
In July 1965, the Toledo Edison Company ("Toledo") acquired, by warranty deed, the electric generating, transmission, and distribution system then owned and operated by the village (now city) of Clyde, and received a twenty-five-year nonexclusive franchise to provide electricity to Clyde's inhabitants.
In 1987, Clyde exercised its rights under Section 4, Article XVIII of the Ohio Constitution and re-established a municipal electric system. The next year, two years before the franchise agreement expired, Clyde's city council authorized Clyde to build a duplicate electric distribution system to provide electric service to its inhabitants. Later that same year, Toledo asked Clyde to renew the nonexclusive franchise agreement for an additional twenty-five years. Clyde declined.
Toledo then initiated a mandamus proceeding, case No. S-88-046, against Clyde, its mayor, its city manager, and its city council members, claiming that construction of a duplicate system and failure to renew the franchise forced Toledo to abandon or withdraw from its existing electric distribution facilities and system in Clyde. Toledo argued that Clyde must obtain approval from the Public Utilities Commission of Ohio before requiring Toledo to abandon its existing electrical distribution facilities or withdraw from its electric service inside Clyde. Toledo requested an order directing Clyde to file an application with the commission seeking approval to require Toledo to abandon its facilities and withdraw its electric service from Clyde.
Subsequently, the court of appeals adopted in its judgment entry the parties' settlement agreement in case No. S-88-046, as follows:
The settlement agreement also stated that it did not grant a franchise to Toledo. Neither party appealed the order adopting the settlement agreement.
On January 3, 1995, Clyde's city council gave the first reading of Ordinance 1995-01. As passed on January 17, 1995, the ordinance reads as follows:
That same day, Resolution No. 1995-04 was passed, instructing the city solicitor to initiate abandonment proceedings before the commission seeking to replace electric service inside Clyde's city limits with service by Clyde and also seeking removal of Toledo's distribution system from inside Clyde's city limits. An application in accordance with the resolution was filed the next day with the commission, case No. 95-02-EL-ABN. 1 The application did not seek commission approval of Section 3 of Ordinance 1995-01.
Two weeks later, Toledo filed a new mandamus action against Clyde, case No. S-95-002, and a separate motion for contempt against Clyde in case No. S-88-046, alleging that Section 3 of Ordinance 1995-01 violated R.C. 4905.21 and the judgment entry in case No. S-88-046 because Section 3 closed some or all of Toledo's lines for service. Toledo requested a writ of mandamus ordering Clyde to obey R.C. 4905.21 by filing an application with the commission for permission to require Toledo to abandon its lines within Clyde and prohibiting the second reading, enactment, or enforcement of Ordinance 1995-01 to the extent that it violated the writ of mandamus.
Clyde moved to dismiss Toledo's new mandamus complaint. The parties then stipulated that the case involved only one substantive legal issue: "Whether the Clyde Respondents violated this Court's Journal Entry of April 24, 1989 or the Miller Act by not requesting in Clyde's Miller Act application at the Public Utilities Commission authorization for the requirement imposed by Section 3 of the City of Clyde Ordinance No. 1995-01 that all future utility service arrangements be made with the City of Clyde."
Clyde then filed its answer to the mandamus complaint, asserting that the complaint failed to state a claim upon which relief could be granted, that the court lacked jurisdiction to grant the injunctive relief requested, that Toledo had a plain and adequate remedy at law, and that Toledo lacked standing as a relator under R.C. 2731.02.
The court of appeals stated that Section 3 of Clyde Ordinance 1995-01 did not apply to anyone currently receiving service from Toledo and that Clyde was otherwise in compliance with the April 24, 1989 judgment entry and R.C. 4905.21. The court then held, without explanation, that Section 3 of Clyde Ordinance 1995-01 did not violate R.C. 4905.21, and that Clyde need not seek or obtain commission approval before enforcing that section of its ordinance. The court of appeals then found Toledo's complaint not well taken.
The cause is now before this court upon an appeal as of right.
Richard W. McLaren, Jr., Independence, for appellant.
Duncan & Allen, Gregg D. Ottinger and John P. Coyle, Washington, DC; Homan & Pearce and William D. Pearce, Clyde, for appellees.
Chester, Willcox & Saxbe, John W. Bentine and Jeffrey L. Small, Columbus, urging affirmance for amicus curiae, American Municipal Power-Ohio, Inc.
In order to obtain a writ of mandamus, the relator must show "that the relator has a clear legal right to the relief prayed for, that the respondent is under a legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 11, 531 N.E.2d 313, 314. For the reasons that follow, we reverse the decision of the court of appeals and find that Section 3 of Clyde Ordinance 1995-01 violates the Miller Act with respect to the termination of Toledo's service to existing facilities inside Clyde, but affirm the decision of the court of appeals that Section 3 of Clyde Ordinance 1995-01 is not subject to the Miller Act regarding new facilities.
Under Section 4, Article XVIII of the Ohio Constitution, "[a]ny municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product[s] 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[s] or service." Thus, Clyde had constitutional authority to build a municipal utility to serve its inhabitants. Wooster v. Graines (1990), 52 Ohio St.3d 180, 181, 556 N.E.2d 1163, 1164. This right is not generally subject to statutory restriction. Lucas v. Lucas Local School Dist. (1982), 2 Ohio St.3d 13, 2 OBR 501, 442 N.E.2d 449; Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 427, 12 O.O.3d 361, 390 N.E.2d 1201; Columbus v. Ohio Power Siting Comm. (1979), 58 Ohio St.2d 435, 12 O.O.3d 365, 390 N.E.2d 1208.
However, municipal utility operations are subject to statewide police power limitations for health and safety reasons, for example, water fluoridation (Canton v. Whitman [1975], 44 Ohio St.2d 62, 73 O.O.2d 285, 337 N.E.2d 766), approval of sewage projects (Delaware Cty. Bd. of Commrs. v. Columbus [1986], 26 Ohio St.3d 179, 184, 26 OBR 154, 158-159, 497 N.E.2d 1112, 1117), and designation of a river as a scenic river area (Columbus v. Teater [1978], 53 Ohio St.2d 253, 260-261, 7 O.O.3d 410, 414, 374 N.E.2d 154, 159). Moreover, the Miller Act, R.C. 4905.20 and 4905.21, requires municipalities to obtain commission approval before forcing the abandonment of nonmunicipal utility facilities or the withdrawal of nonmunicipal utility services located inside the municipality. See, e.g., State ex rel. Klapp v. Dayton Power & Light Co. (1967), 10 Ohio St.2d 14, 39 O.O.2d 9, 225 N.E.2d 230; State ex rel. Wear v. Cincinnati...
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