Summary
In Britt, the Supreme Court found that the municipality had relied solely upon a constitutional grant of power to appropriate.
Summary of this case from Cairo Village Council v. MillerOpinion
No. 73-357
Decided April 3, 1974.
Municipal corporations — Powers of local self-government — Section 3, Article XVIII, Constitution — Power of emment domain beyond municipality not included — Sewage system a public utility — Sections 4 and 6, Article XVIII, Constitution — Extension of sewer facilities beyond municipality — Sale of sewage services to noninhabitants — Power of eminent domain not thereby conferred beyond municipality.
1. The powers of local self-government, granted to a municipality by Section 3 of Article XVIII of the Ohio Constitution, do not include the power of eminent domain beyond the geographical limits of the municipality.
2. 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.
3. Section 4 of Article XVIII of the Ohio Constitution, which authorizes a municipality to "acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which * * * is to be supplied to the municipality or its inhabitants," does not confer eminent domain power upon a municipality to appropriate property beyond its corporate limits in order to extend its municipal sewerage system outside the municipality for the purpose of providing sewage to noninhabitants of the municipality.
4. Section 6 of Article XVIII of the Ohio Constitution, which authorizes a municipality to sell the surplus product of a public utility which it owns or operates to other than the municipality or its inhabitants, does not confer eminent domain power upon a municipality in the extension of its sewer facilities beyond the municipality for the purpose of selling excess sewage services solely to noninhabitants of the municipality.
APPEAL from the Court of Appeals for Franklin County.
On September 15, 1970, a class action suit was instituted in the Court of Common Pleas of Franklin County by Nan B. Britt and others, seeking injunctive relief against the proposed construction of a sewer project by the city of Columbus, a charter city. The proposed project, designated Project 710-11, was to commence as a connection to an existing sewer within the city of Columbus, proceed to the city limits, and then proceed northerly through unincorporated lands in Franklin County along the Scioto River to the village of Dublin.
The purpose of the sewer extension was to sell excess sewage services of the city of Columbus to noninhabitants of the city, with no service being provided by the project to the city of Columbus or its inhabitants.
The plaintiffs, including members of the class, are property owners outside the city of Columbus whose property would be required to be appropriated, either temporarily or permanently, to construct the sewer.
Alternative grounds for relief were averred in the complaint, the ground material to this appeal being set out in paragraphs 9 and 10 of the complaint, which paragraphs allege the following:
"9. The power and authority of the city of Columbus to appropriate land and properties outside its corporate limits for the purposes of Project 710-11 is limited by and subject to the provisions of the Revised Code of Ohio, and in particular Section 719.01 and 719.02 Revised Code.
"10. All the property taken or to be taken for the said Project 710-11 is outside the corporate limits of the city of Columbus. The defendants by ordinances, resolutions of necessity and intent, and proported [ sic] appropriation actions filed in the Common Pleas Court of Franklin County, have acted pursuant to and by the authority of Article XVIII of the Ohio Constitution, the charter of the city of Columbus, and Chapter 909 of the Columbus City Codes 1959. Article XVIII of the Constitution, the charter and the ordinances and resolutions of the city of Columbus do not apply to, and the defendant city has no power authority to appropriate, lands or property outside the corporation limits of the defendant, city for the purpose of constructing sewer Project 710.11."
The city of Columbus, by its answer, admitted the averments of the complaint as to the institution of the project by city council, its proposed route, and that the project would take, temporarily and permanently, property of the named plaintiffs. All other averments in the complaint were generally denied.
A Civ. R. 56 motion for summary judgment was filed by plaintiffs. On August 7, 1972, judgment was entered granting the motion. The judgment, after finding the class action proper, permanently enjoined the city of Columbus, its officers, agents, employees and persons acting in concert in several respects, the part here pertinent being the following:
"3. Make any entry upon or purport to take any private property whatsoever of the plaintiffs and members of the class pursuant to any claimed power or authority derived or granted by Article XVIII of the Ohio Constitution and unless a proper resolution of necessity and other proper legal proceedings shall hereafter be passed and initiated pursuant to the statutes of the state of Ohio."
Appeal was taken by the city of Columbus to the Court of Appeals from that part of the judgment above set forth.
The Court of Appeals issued an initial opinion holding, in substance, that the trial court erred for the reason that Sections 4 and 6 of Article XVIII of the Ohio Constitution authorize a municipal corporation to appropriate private property outside the municipality for the purpose of extension of municipal public utility facilities when the extension is for the purpose of selling surplus services to noninhabitants, even though no part of the extension is to serve inhabitants of the municipality. The court, however, affirmed the judgment of the trial court by further holding that the constitutional power to appropriate property beyond the municipality for the sale of surplus public utility services to noninhabitants could only be exercised if a sale or contract of sale existed, and none was disclosed by the record.
Upon joint motion of both parties for reconsideration, and with a stipulated addition to the record disclosing that a contract for the sale of excess sewage services had been entered on November 9, 1971, between the village of Dublin and the city of Columbus, the Court of Appeals, by judgment entered on March 6, 1973, reversed the judgment of the Court of Common Pleas.
The cause is now before this court pursuant to the allowance of plaintiffs' motion to certify the record and upon the cross-motion of the city of Columbus, hereinafter referred to as City. In its cross-appeal, the City claims error with respect to the conclusion of the Court of Appeals that a sale or contract of sale with noninhabitants is required before a municipality may appropriate property to extend its public utility facilities to sell its surplus public utility services to noninhabitants.
Messrs. Topper, Alloway, Goodman, Deleone Duffey and Mr. John J. Duffey, for appellants and cross-appellees.
Mr. James J. Hughes, Jr., city attorney, Mr. Robert A. Bell and Mr. James R. Kirk, for appellees and cross-appellants.
The novel issue this appeal presents is whether a municipality is constitutionally empowered to appropriate property outside the municipality for the purpose of extending, outside the limits of the municipal corporation, its public utility facilities located within the municipality in order to sell excess public utility products or services, in this case sewage services, solely to nonresidents. The City asserts, in support of the judgment of the Court of Appeals, that such power is granted to it by Sections 3, 4 and 6 of Article XVIII of the Ohio Constitution. Since the City relies solely upon a constitutional grant of power, whether the City could appropriate property beyond its municipal limits for such purposes pursuant to authority granted to municipalities by the General Assembly in R.C. Chapter 719 is not an issue in this appeal.
The sections of Article XVIII pertinent to this appeal are the following:
Section 3. "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. "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. "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."
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. As to Section 3, see State, ex rel. Bruestle, v. Rich (1953), 159 Ohio St. 13. As to Section 4, see Swank v. Shiloh (1957), 166 Ohio St. 415; Euclid v. Camp Wise Assn. (1921), 102 Ohio St. 207; Bd. of Edn. v. Columbus (1928), 118 Ohio St. 295; Dravo-Doyle Co. v. Orville (1915), 93 Ohio St. 236. As to Section 6, see State, ex rel. McCann, v. Defiance (1958), 167 Ohio St. 313.
This court has never framed an all-inclusive definition of the term "all powers of local self-government" appearing in Section 3 of Article XVIII. In the context of specific cases before it, the term has been stated to mean "* * * such powers of government as, in view of their nature and the field of their operation, are local and municipal in character" ( State, ex rel. Toledo, v. Lynch, 88 Ohio St. 71, 97); "* * * the powers referred to are clearly such as involve the exercise of the functions of government, and they are local in the sense that they relate to the municipal affairs of the particular community" ( Fitzgerald v. Cleveland, 88 Ohio St. 338, 344), "the phrase 'all powers of local self-government' as used * * * [in Section 3] means the power of self-government in all matters of a purely local nature" ( State, ex rel. Arey, v. Sherrill, 142 Ohio St. 574).
The power of eminent domain is a power of local self-government under Section 3. State, ex rel. Bruestle, v. Rich, supra. It does not follow, however, that the power of eminent domain beyond the limits of a municipality, as opposed to the power of eminent domain within the municipality, is a power of local self-government. It is self-evident that the exercise of a power to condemn beyond a municipality transcends matters of "purely local nature."
The assertion, that the power of eminent domain by a municipality beyond its corporate limits, with the attendant right to physically invade other political subdivisions of the state, is a power of "local self-government," is clearly refuted by the decision of this court in Beachwood v. Bd. of Elections (1958), 167 Ohio St. 369, holding that detachment proceedings of a territory from a municipality is not a power of local self-government. The opinion, at page 371, states, in the portion relevant here:
"The power of local self-government granted to municipalities by Article XVIII relates solely to the government and administration of the internal affairs of the municipality, and, in the absence of statute conferring a broader power, municipal legislation must be confined to that area. (See Prudential Co-Operative Realty Co. v. City of Youngstown, 118 Ohio St. 204, 160 N.E. 695.) Where a proceeding is such that it affects not only the municipality itself but the surrounding territory beyond its boundaries, such proceeding is no longer one which falls within the sphere of local self-government but is one which must be governed by the general law of the state.
"To determine whether legislation is such as falls within the area of local self-government, the result of such legislation or the result of the proceedings thereunder must be considered. If the result affects only the municipality itself, with no extra-territorial effects, the subject is clearly within the power of local self-government and is a matter for the determination of the municipality. However, if the result is not so confined it becomes a matter for the General Assembly."
Since, in Beachwood, only Sections 3 and 7 of Article XVIII were under consideration, the last sentence in the above quotation must be considered in light of any other specific grants of power in Article XVIII, such as in Sections 4 and 6.
For the reasons above stated, we hold that no power of eminent domain beyond the geographical limits of a municipality is included in the powers of local self-government granted to municipalities by Section 3, Article XVIII.
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. 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.
Specific condemnation authority in the acquisition of a public utility is given in the second sentence of Section 4, as 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." Whether it was intended by the framers of this amendment, and the people in its adoption, to restrict the express grant of condemnation authority to previously existing privately owned public utilities, and leave to implication condemnation authority to implement the power conferred in the first sentence, it is settled that a municipality possesses eminent domain authority beyond the municipality for the purpose of establishing a public utility. Blue Ash v. Cincinnati (1962), 173 Ohio St. 345.
Since the grant of power to a municipality to "acquire, construct, own, lease and operate within or without its corporate limits" is expressly restricted to public utilities, the products or services of which is or is to be supplied to the municipality or its inhabitants, the exercise of eminent domain authority for such purpose under Section 4 is necessarily likewise limited.
In the brief of the City, emphasis is placed upon the portions of Section 4 providing "within or without its corporate limits" and "and may contract with others for any [public utility service]." Although not specifically articulated, the City appears to be suggesting that since, by the express grant in Section 4 and the decisions of this court that municipalities possess eminent domain authority beyond the municipality, the two above-quoted portions of Section 4 grant eminent domain authority beyond the municipality with respect to contracts for the sale of its utility services or products to nonresidents. See Joslyn v. Akron (Com. Pleas 1958), 77 Ohio Law Abs. 370, cited by the City, which appears to substantially adopt such view. However, we need not pursue that argument, since it is foreclosed by the decisions of this court holding that the power to "contract with others for any such product or service" confers authority to contract solely for the purchase by the municipality of utility products or services for its inhabitants. State, ex rel. Mitchell, v. Council of Milan (1938), 133 Ohio St. 499; Ohio River Power Co. v. Steubenville (1919), 99 Ohio St. 421; Ohio Power Co. v. Attica (1970), 23 Ohio St.2d 37.
We conclude, therefore, that since the power of eminent domain claimed in this appeal is for purposes other than supplying a public utility product or service to a municipality or its inhabitants, such claimed power is not within the eminent domain authority granted municipalities by Section 4.
The remaining section of Article XVIII which is claimed to empower municipalities to condemn property beyond the municipality is Section 6. By this section, the framers of the constitutional amendment recognized that, in the operation of a public utility by a municipality for its inhabitants, surplus products or services might be created which could, advantageously to the municipality, be disposed of beyond the corporate limits of the municipality. State, ex rel. Wilson, v. Hance (1959), 169 Ohio St. 457.
It is evident, however, as an examination of Section 6 discloses, that no express power of eminent domain was included to effect such sale and delivery. The City asserts that implementation of the power "to sell and deliver to others" requires the selling municipality to extend its facilities, and that eminent domain authority is necessarily required for such purpose. Yet, there is nothing said in Section 6 to indicate that the selling municipality is constitutionally mandated to provide such facilities.
The compelling necessity of eminent domain authority beyond a municipality for implementation of the municipality's constitutional grant or power to "acquire, construct, own, lease and operate within or without its corporate limits," to provide services to the municipality or its inhabitants, is self-evident. The power of eminent domain authority in the sale of surplus public utility products or services to noninhabitants, although undoubtedly economically and, possibly, politically advantageous with respect to annexation, rests upon no comparable compelling necessity.
With respect to the implication of a power of eminent domain in a constitutional grant where the right is not expressly conferred, this court stated in Blue Ash v. Cincinnati, supra ( 173 Ohio St. 345, 352), the following:
"Implication must arise only from the language used; and a taking by implication 'can be only to the extent of the necessity, and that necessity must arise from the nature of things over which the corporation desiring to take has no control, and not from a necessity created by such corporation for its convenience or economy.' McQuillin, Municipal Corporations (3 Ed.), 402, Section 32.67."
To adopt the argument asserted by the City with respect to Section 6, we would necessarily have to conclude that the framers of Section 6, and the people in its adoption, intended to leave to implication a conferral of power upon a municipality of substantial impact beyond the municipality, with the attendant right of the municipality to exercise such power for its own benefit unfettered by any legislative control. The framers of this amendment were cognizant of the need of condemnation authority in the area of municipal ownership of public utilities, as evidenced by Section 4, and their silence upon that question in Section 6 is indicative that a conferral of power, such as is here claimed, was not intended, and we so hold.
Since we hold that Sections 3, 4 and 6 of Article XVIII do not confer any constitutional power of eminent domain for the purpose here sought, we do not reach or consider the issue raised by the cross-appeal as to whether such power is dependent upon a prior sale or contract of sale, that issue now being moot.
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for HERBERT, J.