Summary
In Klapp, the city of Piqua sought to stop the Dayton Power Light Company from providing electric service to Piqua and to compel it to withdraw its equipment and facilities from within Piqua's city limits.
Summary of this case from State ex Rel. Toledo Edison Co. v. ClydeOpinion
No. 40544
Decided March 29, 1967.
Municipal corporations — Powers of local self-government — Yield to general laws of statewide scope — Public utility — Withdrawal of service — Application to Public Utilities Commission — Sections 4905.20 and 4905.21, Revised Code — Action by municipality to require utility to abandon service — Quo warranto not maintainable.
1. Police and similar regulations under the powers of local self-government established by the Constitution of Ohio must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations in the exercise by a municipality of the powers of local self-government.
2. Sections 4905.20 and 4905.21, Revised Code, commonly known as the Miller Act, requiring a public utility or a political subdivision, in the termination, abandonment or withdrawal of public utility services, to apply to the Public Utilities Commission for authority to do so, were enacted as regulatory measures in the public interest under the police power of the state and are of general force and application throughout the state.
3. The action of a municipality in seeking to compel a privately owned public utility to remove its poles, wires and equipment from the streets and ways of the municipality and abandon its service locally is subject to the provisions of the Miller Act, and an action in quo warranto to oust the public utility from its operations in the municipality, by-passing the Miller Act, is not maintainable.
APPEAL from the Court of Appeals for Miami County.
Despite the title of the case, the present action in quo warranto instituted in the Court of Appeals for Miami County in 1933 is essentially one by the city of Piqua, operating under a charter since January 1, 1930, and also operating a municipal electric power and light plant, to require The Dayton Power Light Company, an Ohio corporation, to remove its poles, wires, standards and other equipment from the streets, alleys, etc., of the city of Piqua, excepting such equipment as it uses for the transmission of electricity from points outside the corporate limits of such city to points beyond the corporate limits thereof.
This case has had a tortuous history in both the Court of Appeals for Miami County and in the federal courts. See 113 Ohio App. 433, 178 N.E.2d 838; 170 F. Supp. 722 (D.C.S.D. Ohio, W.D.), 263 F.2d (6 Cir.) 909; 359 U.S. 552, 3 L. Ed. 2d 1035, 79 S. Ct. 1151.
It was last considered and decided by the Court of Appeals for Miami County on a demurrer to the third amended petition. Such demurrer was sustained and the action dismissed, and the cause is now in this court for disposition on appeal.
Mr. Richard K. Wilson, director of law, Mr. Haveth E. Mau and Mr. Robert Houston French, for appellant.
Messrs. Shipman, Utrecht Dixon, Mr. James C. Utrecht, Mr. Julian de Bruyn Kops and Mr. J.R. Newlin, for appellees.
The determinative question for decision is whether the city of Piqua has the right to terminate the use of its streets, alleys, etc., by The Dayton Power Light Company in furnishing electric energy to persons, firms and corporations located within the corporate limits of the municipality without submitting the matter to the Public Utilities Commission in compliance with the provisions of Sections 502-2 and 504-3, General Code, commonly known as the Miller Act. Those sections, without substantial change, are now Sections 4905.20 and 4905.21, respectively, Revised Code.
Section 4905.20 reads:
"No * * * public utility as defined in Section 4905.02 of the Revised Code furnishing service or facilities within this state, shall abandon or be required to abandon or withdraw any main * * * electric light line * * * or any portion thereof, pumping station, generating plant, power station * * * or service station of a public utility, or the service rendered thereby, which has once been laid, constructed, opened, and used for public business, nor shall any such facility be closed for traffic or service thereon, therein, or thereunder except as provided in Section 4905.21 of the Revised Code."
And, then, Section 4905.21 recites:
"Any * * * public utility or political subdivision desiring to abandon or close, or have abandoned, withdrawn, or closed for traffic or service all or any part of any line, pumping station, generating plant, power station * * * or service station, referred to in Section 4905.20 of the Revised Code, shall make application to the Public Utilities Commission * * *."
In support of the city's claimed right of ouster, it relies strongly on Section 3, Article XVIII of the Constitution of Ohio, the so-called home-rule amendment, its charter, Section 4, Article XVIII of the Constitution, empowering municipalities to "acquire, construct, own, lease and operate within or without its corporate limits, any public utility," etc., and a Piqua ordinance of 1884 permitting the predecessor of The Dayton Power Light Company to use the streets of that municipality for poles and wires for the transmission of electricity, which ordinance it is claimed constitutes a terminable franchise of a contractual nature, eliminating the application of the so-called Miller Act.
It hardly seems necessary to discuss in detail the various factors involved in the instant case. That has been adequately and comprehensively done with a historical background in the first three cases cited in the statement of the case, and we are in accord with the conclusions reached therein.
Again, in the last analysis, the real issue here is: Does the Miller Act apply? If it does, the city must lose.
Prior to the Miller Act, aggravating conflicts arose between municipalities and public utilities carrying on their business within the confines of the municipalities relating to the installation, maintenance and operation of the utilities' facilities, and considerable litigation arose because of those disputes. Some of the illustrative cases are collected and cited in Grandview Heights v. Columbus, 174 Ohio St. 473, 190 N.E.2d 453.
Certainly, an important purpose of the Miller Act was to place such disputes, affecting the public interest generally, before the Public Utilities Commission as the agency best adapted to resolve them initially.
Sections 4905.20 and 4905.21 are plainly worded and constitute regulatory measures of general application throughout Ohio. They were enacted under the police power of the state for the benefit of the public as a whole, including the residents of Piqua. It is well settled that police and similar regulations of a municipality must yield to general laws of statewide scope and application as represented by the Miller Act. Cleveland Telephone Co. v. Cleveland, 98 Ohio St. 358, 121 N.E. 701, and State, ex rel. Arey, v. Sherrill, City Mgr., 142 Ohio St. 574, 53 N.E.2d 501, paragraphs one and two of the syllabus.
Surely, statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations adopted in the exercise by a municipality of the powers of local self-government. Beacon Journal Publishing Co. v. Akron, 3 Ohio St.2d 191, 195, 209 N.E.2d 399, 402.
Our conclusion is that the action of the city of Piqua in seeking to compel The Dayton Power Light Company to remove its poles, wires and equipment from the streets and ways of the municipality and abandon its service locally is subject to the provisions of the Miller Act, and hence this action in quo warranto, bypassing the Miller Act, is not maintainable.
We agree with the several holdings of the Court of Appeals, and its last judgment rendered herein, from which this appeal is taken, is affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.