Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
B OARD OF OUNTY C OMMISSIONERS OF TTAWA C OUNTY , A PPELLANT , v. V ILLAGE OF M ARBLEHEAD ET AL . , A PPELLEES .
[Cite as
Ottawa Cty. Bd. Commrs. v. Marblehead
,
is constitutional—R.C. 6103.04 does not substantially interfere with a municipality’s power to own and operate a water supply system. (No. 98-1061—Submitted March 30, 1999—Decided July 7, 1999.) A PPEAL from the Court of Appeals for Ottawa County, No. OT-97- 031. __________________
This case stems from a dispute between the Board of County
Commissioners of Ottawa County (“the Board”) and the village of Marblehead (“Marblehead”), regarding which entity has the right to provide water service to residents of county land that was recently annexed by Marblеhead. The dispute began when the Board’s plan for a county-wide water
supply system collided with Marblehead’s plan to sell excess municipal water to residents within the disputed area before it was annexed. The Board sought to enjoin Marblehead from expanding its water service beyond its municipal boundaries. Because the Board’s power to regulate sewer districts and Marblehead’s authority to construct water service outside its municipal boundaries were of equal dignity, the trial court applied a balancing test to weigh the interests of the two entities and concluded that the Board had rights paramount to those of Marblehead. The Board obtained a declaratory judgment that Marblehead was without authority to extend water service into the disputed area. The court of appeals affirmed based upon the facts of the case. Within days of the court of appeals’ decision, the residents within the
disputed area filed their petition with the Board seeking annexation to Marblehead. *2 Bеfore responding to the petition, the Board passed several resolutions: (1) a resolution of necessity declaring its intention to provide water service to the residents within the disputed area as well as to other areas of the county; (2) a resolution approving detailed plans, specifications, estimates of cost, water rates and charges, and assessment policy; and (3) a resolution determining to proceed with the construction of water system improvements within the county. Thereafter, the Board declined to approve the pending petition for annexation. County property owners objected to the Board’s resolutions
regarding the water supply system and filed an appeal to the probate court. The probate court found that the county water supply system was necessary for the public health, convenience, and welfare; that the boundaries of the assessment district were reasonable; and that the tentative assessments were, for the most part, reasоnable. The court of appeals affirmed. Meanwhile, the residents who filed the petition for annexation sought
review of the Board’s resolution declining to approve the petition at the court of common pleas. The common pleas court determined that the Board had acted arbitrarily and unreasonably in denying the annexation petition and accordingly reversed the Board’s refusal to accept the annexation petition. After the annexation petition was accepted, Marblehead prepared its
own plans to provide water service to the residents within the disputed area. The Board sought, through an action for declaratory judgment, a temporary restraining order, and preliminary and permanent injunctive relief, to enjoin Marblehead from extending its water supply system into the disputed area and from engaging in any conduct that would interfere with the Board’s ability to issue bonds for improvements within the disputed area. The Board asked the trial court to declare that R.C. 6103.04 gives it continuing authority within the disputed area to complete the water supply system that was already approved and adopted at the time of annexation. Marblehead counterclaimed. Marblehead sought to enjoin the Board *3 from constructing a water supply system within the disputed area without Marblehead’s prior approval. Marblehead also sought a declaration that R.C. 6103.04 is unconstitutional because it conflicts with Section 4, Article XVIII of the Ohio Constitution, which Marblehead argued confers absolute authority on a municipality to construct and maintain a water supply system within its borders and to contract for water service for its residents.
{¶ 7} The trial court found that Marblehead has the exclusive right to provide water service within the disputed area, that R.C. 6103.01 et seq. is unconstitutional to the extent it interferes with Marblehead’s exclusive right, and that the Board does not have the authority to construct a water supply system within Marblehead without Marblehead’s approval. The court of appeals affirmed. The cause is now before this court upon the allowance of a discretionary appeal.
__________________
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Orla E. Collier III, N. Victor Goodman and James F. DeLeone , for appellant.
Vorys, Sater, Seymour & Pease, L.L.P., and Joseph A. Brunetto , for appellees.
__________________ OOK , J. Although Article XVIII of the Ohio Constitution grants
municipalities the exclusive authority to provide their residents with utility services, a statute that limits the municipality’s power is not unconstitutional if the purpose of the statute is an exercise of the state’s police powers and is not a substantial infringement upon the municipality’s authority. Because R.C. 6103.04 satisfies these requirements, it is not unconstitutional. The Ohio Constitution authorizes a municipality to provide water
service to its residents to the exclusion of other providers. See
Lucas v. Lucas Local
*4
School Dist.
(1982),
permits a county sewer district to exercise jurisdiction for water-works purposes within the annexed territory of a municipality in violation of Section 4, Article XVIII of the Ohio Constitution. R.C. 6103.04 provides statutory authority to enable an established county sewer district to complete an existing county water service project when territory within the project area acquires municipality status through annexation during the pendency of the county project. R.C. 6103.04 provides:
“Whenever any portion of a sewer district is * * * annexed to a municipal corporation, the area so * * * annexed shall remain under the jurisdiction of the board of county commissioners for water-works purposes until any water supply or water-works improvements for said area for which detailed plans have been prepared and the resolutions declaring the necessity thereof has [ sic ] been adopted by the board have been completed or until said board has abandoned such projects. Such * * * annexation of any part of a district shall not interfere with or render illegal any issue of bonds or certificate of indebtedness made by the board * * * to *5 provide payment for the cost of construction and maintenance of any water improvements within such area, or with any assessments levied or to be levied upon the property within such area to provide for the payment of the cost of construction and maintenance.” R.C. 6103.04 appears to contravene the cоnstitutional authority of a
municipality to provide public utility service. And that right is not generally subject
to statutory restriction.
Lucas
, 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. But a statute enacted to promote the health, safety, and welfare of
the public can override the municipality’s authority if the statute does not
substantially interfere with the municipality’s constitutionally granted power. See,
e.g.
,
Columbus v. Teater
(1978),
the fundamental precept that Ohio statutes are entitled to a strong presumption of
constitutionality and must, in questionable cases, be construed to be constitutional
if possible.
State ex rel. Jackman v. Court of Common Pleas of Cuyahoga Cty.
(1967),
“Where the state enacts a statute promoting a valid and substantial interest
in the public health, safety, morals or welfare; where the statute’s impact upon the
*6
municipal utilities is incidental and limited; and where the statute is not an attempt
to restrict municipal power to operate utilities, the statute will be upheld.
Conversely, * * * where the purpose of a statute is to control or restrict municipal
utilities, the statute must yield. The majority of cases, however, * * * fall between
these extremes.” In those casеs, the court must “ ‘balance the rights of the state
against those of the municipality and endeavor to protect the respective interests of
each.’ ”
Id.
at 433,
the interests of the Board against those of Marblehead. We recognize that the state
has a substantial interest in ensuring that Ohio residents have a safe and adequate
water supply. In fact, this court has held that a board’s power to regulate sewer
districts in the interest of public health and welfаre constitutes a valid exercise of
state police powers.
Delaware Cty. Bd. of Commrs. v. Columbus
(1986), 26 Ohio
St.3d 179, 180-181, 26 OBR 154, 155,
police powers, we next review whether the legislative intent of the statute was to generally restrict a municipality’s authority to provide utility service to its residents. By the expressly limited scope, we discern that the General Assembly intended R.C. 6103.04 to permit completion of pending county water service projects through protection of financing arrangements that would otherwise be affected by intervening annexations. The challenged statute’s impact on a municipality’s authority to
operate utilities is limited. R.C. 6103.04 restricts the Board’s statutory jurisdiction within the municipality to that period of time when “any water supply or water- works improvements for said area * * * have been completed or until said board *7 has abandoned such projects.” And this limited jurisdiction is only triggered by an intervеning set of circumstances that warrant such practical considerations; considerations generally encompassed within the concept of police powers, including preservation of public resources.
{¶ 17} R.C. 6103.04 does not substantially interfere with a municipality’s power to own and operate a water supply system.
{¶ 18} For all of these reasons, we conclude that Marblehead has not overcome the strong presumption that R.C. 6103.04 is constitutional. R.C. 6103.04 only permissibly infringes on a municipality’s authority. It is an exercise of police powers and does not substantially infringe upon a municipality’s power to operate utilities. Because we reverse the court of appeals’ decision regarding the
constitutionality of R.C. 6103.04, we need not reach its decision regarding R.C. 6103.26. The court of appeals premised its R.C. 6103.26 discussion on the unconstitutionality of R.C. 6103.04. Accordingly, the judgment of the court of appeals is reversed.
Judgment reversed.
Y OUNG , P FEIFER and L UNDBERG S TRATTON , JJ., concur.
D OUGLAS , Acting C.J., S PELLACY and F.E. S WEENEY , JJ., dissent. F REDERICK N. Y OUNG , J., of the Second Appellate District, sitting for M OYER , C.J.
L EO M. PELLACY , J., of the Eighth Appellate District, sitting for R ESNICK , J.
__________________
D OUGLAS , A CTING C.J., dissenting.
I dissent from thе judgment and opinion of the majority. The
majority, in rapid fashion, has abridged the express grant of power provided to
municipalities in this state by Section 4, Article XVIII of the Ohio Constitution.
*8
Specifically, the majority holds that “[a]lthough Article XVIII of the Ohio
Constitution grants municipalities the
exclusive
authority
to provide
their residents
with utility services, a statute that limits the municipality’s power is not
unconstitutional if the purpose of the statute is an exercise of the state’s police
powers and is not a substantial infringement upon the municipality’s authority.”
(Emphasis added.) Tо that end, the majority holds that “[b]ecause R.C. 6103.04
satisfies these requirements, it is not unconstitutional.”
In reaching these conclusions, the majority relies primarily on
Lucas
v. Lucas Local School Dist
. (1982),
“ 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 tо 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, *9 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.” (Emphasis added.) The language of Section 4, Article XVIII is unmistakable. Until
today, the clear language of Section 4 meant that a municipality сould, without restriction, “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.” However, these plain words, as approved by the sovereign people of this state in 1912, apparently no longer mean what they say. This court has held consistently that rights afforded by Section 4,
Article XVIII are not subject to statutory restriction or to commission review or
control. See,
e.g
.,
Cleveland Elec. Illum. Co. v. Pub. Util. Comm
. (1996), 76 Ohio
St.3d 521, 530,
at 450, we stated that Section 4, Article XVIII “is clearly a grant of power and not
a limitation of authority,” and that “the obvious purpose of this section is to provide
*10
the municipalities with the comprehensive authority to deal with public utilities.”
Id
.,
“Whenever any portion of a sewer district is incorporated as a municipal
corporation or annexed to a municipal corporation, the area so incorporated or
annexed shall remain under the jurisdiction of the board of county commissioners
for water-works purposes until any water supply or water-works improvements for
said area for which detailed plans have been prepared and the resolutions declaring
the necessity thereof has [
sic
] been adopted by the board have been completed or
until said board has abandoned such projects. Such incorporation or annexation of
*11
any part of a district shall not interfere with or render illegal any issue of bonds or
certificate of indebtedness made by the board in accordance with sections 6103.02
tо 6103.30, inclusive, of the Revised Code, to provide payment for the cost of
construction and maintenance of any water improvements within such area, or with
any assessments levied or to be levied upon the property within such area to provide
for the payment of the cost of construction and maintenance.”
R.C. 6103.04 sets forth that whenever any portion of a county sewer
district is annexed to a municipality, the area annexed shall remain under the
jurisdiction of the board of county commissioners for waterworks purposes until
the projects, for which detailed plans have been prepared and resolutions declaring
the necessity thereof have been adopted, have been completed or abandoned by the
board. According to the majority, Marblehead can be enjoined from establishing a
water supply system for its residents because R.C. 6103.04 is a legitimate exercise
of the state’s police powers and because the statute does not “substantially
interfere” with, and “only permissibly infringеs” upon, the exclusive authority
afforded to municipalities in Section 4, Article XVIII. In reaching these
conclusions, and, specifically, the conclusion that the board’s rights under R.C.
6103.04 are paramount to the explicit constitutional power afforded to Marblehead
under Section 4, Article XVIII, the majority relies upon
Teater
and
Whitman
,
supra
.
Without question, certain legislative acts “of statewide concern,”
which do not impair constitutional grants of authority contained in Section 4,
Article XVIII, are valid.
Lucas
,
fluoridate an
already existing
municipally owned and operated water supply system
and that the statute in question, which required a certain level of fluoridation, was
*12
a valid exercise of the state police power. Specifically, we determined that the
statute requiring fluoridation of water was permissible because the regulation was
a matter of statewide concern (preventiоn and control of dental caries), and, more
importantly, because the regulation did not limit the ownership or operation of a
municipal waterworks.
Id
.,
6103.04 is only a “limited” restriction. The majority states that R.C. 6103.04
“restricts the Board’s statutory jurisdiction within the municipality to
that period of
time
when ‘any water supply or water-works improvements for said area * * * have
been completed or until said board has abandoned such projects.’ ” (Emphasis
added.) “Period of time” is, of course, not defined by the majority. In any event,
any
limitation on a municipality’s authority
to provide
water services to its residents
violates Section 4, Article XVIII. Indeed, this cоurt’s holding in
Whitman
was
never intended to “represent a retreat from the strong home rule principles” that the
General Assembly may not limit the power of a municipality
to own or operate
a
*13
public utility without violating Section 4, Article XVIII. See
Columbus v. Pub.
Util. Comm
.,
“The authority enjoyed by municipalities under Article XVIII cannot be extinguished by the General Assembly. Nevertheless, under appropriate facts, the power possessed by the General Assembly under Section 36 of Article II can override the interest of a city in constructing water supply impoundments located outside its corporate limits . Ultimately, the judiciary must determine the facts in such controversies, balance the rights of the state against those of the municipality and endeavor to protect the respective interests of each. In such instances, the *14 outcome of the constitutional argument involved will depend upon the facts and circumstances of the case.” (Emphasis added.) Clearly, Teater does not support the holding of the majority. In
Teater
, the court indicated that state police powers are not presumptively
paramount to home rule authority conferred upon municipalities by Article XVIII.
Rather, state police powers and home rule powers are “equal in dignity,” see
Teater,
municipality to own and operate a public utility for the purpose of supplying the
service or product to its residents. See,
e.g
.,
McCann
(statute that requires
municipalities to furnish water to noninhabitants and also limits the price which the
municipality may charge for such water is unconstitutional and is void);
Columbus
v. Pub. Util. Comm
. (statute that requires municipally owned and operated electric
light companies to offer their customers specified billing options violates Section
4, Article XVIII); and
Columbus v. Ohio Power Siting Comm
. (statute that
authorizes a commission to evaluate and determine a municipality’s need for, and
the public service and convenience of, a proposed municipal utility is
unconstitutional). Importantly, “ ‘[l]egislation enacted by the state pursuant to the
*15
police power, in relation to the public health, is valid as applied to the municipal
operation of a public utility under Section 4, Article XVIII of the Ohio Constitution,
where such legislation does not interfere with the ownership or operation of the
utility
.’ ” (Emphasis sic.)
Columbus v. Ohio Power Siting Comm
., 58 Ohio St.2d
at 440,
provide water service to its residents. The majority’s decision, reversing the judgment of the court of appeals and enjoining Marblehead from extending its water supply system into the annexed area, is just plain wrong. Accordingly, I must dissent. PELLACY and F.E. S WEENEY , JJ., concur in the foregoing dissenting
opinion.
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