Opinion
No. 34193
Decided June 1, 1955.
Regional planning commission — Creation — Powers and duties — Effect of adoption of plans by county commissioners — Non-conforming improvement prohibited unless authorized by board — Public utility privately owned power company — Power of eminent domain — Amenable to Section 713.25, Revised Code — Application for approval of departure from plan necessary — Remedy of utility on adverse ruling — Appeal to Common Pleas Court — Section 307.56, Revised Code.
1. By virtue of Sections 713.21 and 713.23, Revised Code, and subject to the conditions and limitations therein specified, there may be created and maintained for the whole or a part of any county in the state, a regional planning commission which is authorized to make plans and maps of the region or county showing such commission's recommendation for systems of transportation, highways, park and recreational facilities, water supply, sewerage and sewage disposal, garbage disposal, civic centers and other public improvements throughout the affected territory.
2. Under Section 713.25, Revised Code, the Board of County Commissioners of a county may adopt such a plan so far as it relates to nonmunicipal territory, and thereafter no public building, roadway, bridge or other public improvement or utility, publicly or privately owned, whose construction or location would constitute a departure from the plan shall be constructed unless authorized by the board by unanimous vote.
3. An Ohio public utility, privately owned, engaged in the business of generating and distributing electricity in different counties throughout the state and possessing by grant of the General Assembly the power of eminent domain in the prosecution of its activities, is amenable to the provisions of Section 713.25, Revised Code.
4. Where, pursuant to Section 713.25, Revised Code, the plan of a lawfully created regional planning commission in a county or a portion thereof has been approved and adopted by the Board of County Commissioners, and a privately owned electric power company proposes and purposes to carry on its business in and through such planned territory in a manner constituting a departure from the plan, the utility must apply to the board for approval of the departure.
5. If the decision of the Board of County Commissioners on the application for the approval of the departure should be adverse to the utility, it may under the provisions of Section 307.56, Revised Code, appeal within 15 days from such decision to the Court of Common Pleas where it may present and have determined its claims challenging the lawfulness and reasonableness of the board's action.
IN QUO WARRANTO.
This is an action in quo warranto brought originally in this court by Frank H. Kearns, Prosecuting Attorney of Franklin County, Ohio, against the Ohio Power Company, an Ohio corporation, and the matter is now before the court for decision on a demurrer to the answer.
The petition is short and reads as follows:
"Relator says that he is the duly elected, qualified and acting Prosecuting Attorney of Franklin County, Ohio; that respondent is a private corporation organized and existing under and by virtue of the laws of the state of Ohio, operating a privately owned utility and engaging in the business of generating and distributing electricity in the state of Ohio; that the principal office of respondent is located in Canton, Stark County, Ohio; that respondent does business in Franklin County, Ohio; that relator brings this action on behalf of the state of Ohio.
"Relator further states by virtue of and pursuant to the laws of the state of Ohio there has been created in and for Franklin County, Ohio, a regional planning commission; that said Franklin County Regional Planning Commission has pursuant to Section 4366-15, Ohio General Code ( 713.23, Revised Code), promulgated and duly adopted plans of and for the regions of Franklin County, Ohio, known as Blendon, Plain and Sharon Townships; that said plans contain recommendations for systems of transportation, highways, park and recreational facilities, water supply, sewer lines, civic centers, and other public improvements which affect the development of the said regions including railroads and power lines; that copies of said plans for said Blendon and Plain Townships are hereto attached and made a part hereof.
"Relator further states that the Board of County Commissioners of Franklin County, Ohio, has duly adopted said plans in accordance with and pursuant to Section 4366-17, Ohio General Code ( 713.25, Revised Code), that it has certified the fact of such adoption to the said Franklin County Regional Planning Commission; and that said commission deposited a copy of the aforesaid plans in the office of the County Recorder, Franklin County, Ohio, pursuant to Section 4366-19, Ohio General Code ( 713.27, Revised Code).
"Relator further states that respondent, Ohio Power Company, as a matter of right, is engaged in the construction and location of power lines and incidents thereto in said Blendon and Plain Townships; that said construction and location constitutes a departure from said plans and that the said Board of County Commissioners has not authorized said construction and location pursuant to Section 4366-17, Ohio General Code or Section 713.25, Revised Code; and that respondent has assumed and used and is now using franchise rights and privileges, as above enumerated, the same not having been granted to it by any lawful authority and without the consent or authority of the relator, state of Ohio, or the aforesaid Board of County Commissioners.
"Wherefore, relator prays that said respondent be compelled to answer to the state authority, by what warrant it claims to use and enjoy the liberties, privileges and franchises aforesaid; and that it be ousted from using the same, and for such other and further relief as may be just and equitable."
The answer is lengthy and consists of seven defenses. The first contains certain formal admissions including the facts of the establishment of a regional planning commission in and for Franklin County, the promulgation and adoption of maps containing a general plan for Blendon and Plain Townships covering transportation, highways, parks, recreational facilities, water supply and sewer lines, the adoption of such plan in accordance with Section 4366-17, General Code (Section 713.25, Revised Code), the certification of such adoption to the Franklin County Regional Planning Commission, and the deposit of the maps in the office of the County Recorder. Further in such first defense respondent admits that it is engaged in the location and construction of its electric power lines in Blendon and Plain Townships and that it has not obtained consent from the Board of County Commissioners for such activity. Respondent then denies generally the remaining allegations of the petition and expressly denies that in the location and construction of its power lines it is using its franchise rights and privileges without lawful authority.
In the second defense respondent describes its extensive operations in many Ohio counties with costly electric plants, generating stations and facilities within and without Ohio, all of which are alleged to be necessary in the conduct of its business.
It further alleges that through negotiations and by condemnation proceedings completed or in progress it has acquired or will acquire rights of way in Franklin County, including Plain and Blendon Townships, necessary for the construction of its power lines. It then asserts that its right to proceed according to its plans is paramount over any right of the Board of County Commissioners of Franklin County or of the Franklin County Regional Planning Commission to interfere with such plans; that the powers conferred by law on such agencies extend only to matters of local concern; and that such agencies are without authority to control respondent as a public utility of widespread proportions in the exercise of its powers of eminent domain or in the acquisition and use of rights of way in the planned territory.
In its third defense respondent alleges that as a public utility it is under the jurisdiction of the Public Utilities Commission of Ohio to the exclusion of any county authority.
In its fourth defense respondent alleges that it is engaged in interstate commerce and describes the wide extent of such activity in conjunction with other electric power companies, and that "any attempt by the Board of County Commissioners of Franklin County to interfere with or to assert authority over the location and construction of said projected transmission lines in Franklin County, Ohio, would constitute an unreasonable burden on interstate commerce and is unlawful."
For its fifth defense respondent asserts that any attempt by the Board of County Commissioners of Franklin County, acting under Section 713.25, Revised Code, or under any other statutory provision, to interfere with its operations would violate Section 18, Article I of the Constitution of Ohio, providing that "no power of suspending laws shall ever be exercised, except by the General Assembly," and Section 26, Article II of the Constitution, providing that all laws of a general nature shall have a uniform operation throughout the state.
In its sixth defense respondent avers that the so-called regional plan promulgated by the Franklin County Regional Planning Commission and adopted by the Board of County Commissioners embraces only Blendon, Plain and Sharon Townships and provides only for the continuing existence of a local power line through the southern part of Blendon and Sharon Townships. In such sixth defense respondent asserts further that it has expended in excess of $200,000 in acquiring rights of way for the construction and maintenance of electric transmission lines in Plain and Blendon Townships, and that any interference by the county authorities would constitute a confiscation of its property in violation of Sections 1 and 19 of Article I of the Constitution. The sixth defense also contains a description of respondent's overall plans with respect to its transmission lines in other Ohio counties and the assertion that any local interference would result in the destruction of its property rights in violation of both the federal and state Constitutions.
The seventh defense deals with laches. Respondent asserts therein that it began to acquire the first right of way in Plain and Blendon Townships during February 1952, and since that time has acquired additional rights of way by negotiation and condemnation, expending in excess of $200,000 in such pursuit; and that such activities were well known to the Franklin County Regional Planning Commission prior to November 6, 1952, when the commission requested the Prosecuting Attorney of Franklin County, Ohio, to take action against respondent, and prior to the purported adoption by the Franklin County Planning Commission of its plan for Blendon, Plain and Sharon Townships.
The answer closes with the following allegation:
"The Franklin County Regional Planning Commission and the Board of County Commissioners of Franklin County, Ohio, are severally barred by laches and estoppel from enforcing said so-called plans against respondent either by direct action in their own name or by inducing relator to bring an action in their behalf in an effort indirectly to enforce such plans against the respondent."
Mr. Frank H. Kearns, prosecuting attorney, Mr. Earl W. Allison and Mr. John J. Duffey, for relator.
Messrs. Day, Cope, Ketterer, Raley Wright, Mr. Robert M. Rybolt, Mr. John F. Buchman, III, and Messrs. Alexander, Ebinger Wenger, for respondent.
This action in quo warranto is one in which the respondent is called upon to show by what authority it is exercising its franchise rights in certain townships of Franklin County in disregard of the plan for those townships adopted by the Board of County Commissioners.
Although a highly important matter is presented in this case, the basic issues are relatively simple. Respondent claims that because of the nature and extent of its business and because of the powers of eminent domain conferred on it by the General Assembly of Ohio it is not amenable to Section 713.25, Revised Code, and furthermore that the wording of that section is not broad or comprehensive enough to embrace it.
Or, in the words of counsel for respondent, the contention is:
1. "The Board of County Commissioners, by adopting a plan for county development, pursuant to Section 713.25, Revised Code, can not prevent the location and construction through the county of facilities of a public utility, having the right of eminent domain under the statutes of this state, designed to provide service to citizens in other areas of the state and in other states."
2. "The authority of the Regional Planning Commission relates solely to matters of local concern and not to matters of state-wide significance."
Section 713.23, Revised Code, reads:
"The regional or county planning commission shall make plans and maps of the region or county respectively, showing the commission's recommendation for systems of transportation, highways, park and recreational facilities, the water supply, sewerage and sewage disposal, garbage disposal, civic centers, and other public improvements which affect the development of the region or county respectively, as a whole or as more than one political unit within the region or county, and which do not begin and terminate within the boundaries of any single municipal corporation." (Emphasis supplied.)
The word, "transport," is defined in the New Century Dictionary as "to carry or convey from one place to another." The Oxford English Dictionary defines the same word as "to carry, convey or remove from one place or person to another; to convey across." And in a number of instances the term, "transportation," has been applied to the "transmission of electric current * * * through appropriate instrumentalities" from one locality to another. See Mill Creek Coal Coke Co. v. Public Service Commission, 84 W. Va. 662, 100 S.E. 557, 7 A.L.R., 1081, and the A.L.R. annotation beginning at page 1094; 18 American Jurisprudence, 411, Section 5.
Section 713.25, Revised Code, states:
"The planning commission of any municipal corporation to which a regional or county plan is certified under Section 713.24 o the Revised Code, may adopt such plan, and it shall thereupon have the same force within such municipal corporation as is provided by law or charter for plans prepared and adopted by the local planning commission. The Board of County Commissioners may adopt such plan so far as it relates to nonmunicipal territory. Thereafter no public building, roadway, bridge, viaduct, or other public improvement or utility, publicly or privately owned, whose construction or location would constitute a departure from the plan shall be constructed or authorized by the board except by unanimous vote. Such plans shall not designate the specific lots or parcels of land upon which such system, facilities, buildings, and improvements are proposed to be placed, but only the general site or location thereof. * * *" (Emphasis supplied.)
Reading Sections 713.23 and 713.25, Revised Code, together, we conclude that the term, "systems of transportation," as used in Section 713.23, includes and was intended to include a public utility such as an electric power company with its poles or standards carrying its wires.
It is clear that respondent is engaged in a business serving public needs. Because of the nature of such business, the state of Ohio, through the General Assembly, has conferred on it the power of eminent domain, which is the right to appropriate private property for a public use upon the payment of just compensation.
As a comparatively recent development and to meet the necessities of a changing and expanding civilization, the General Assembly has also conferred upon Boards of County Commissioners the right, in the public interest and to promote the general welfare, to adopt and enforce planning measures whereby facilities and installations which serve the public needs in specified areas may be regulated and controlled as to location.
Although they are sometimes used interchangeably the terms, "zoning" and "planning," are not synonymous. Zoning is concerned chiefly with the use and regulation of buildings and structures, whereas planning is of broader scope and significance and embraces the systematic and orderly development of a community with particular regard for streets, parks, industrial and commercial undertakings, civic beauty and other kindred matters properly included within the police power. 1 Yokley's Zoning Law and Practice (2 Ed.), 2, 3, Section 1. And see Mansfield Swett, Inc., v. Town of West Orange, 120 N.J. Law, 145, 149, 198 A. 225, 228, and Mills v. City of Baton Rouge, 210 La. 830, 839, 28 So.2d 447, 451.
Respondent's right to pursue its business, to construct and maintain power lines and to exercise its power of eminent domain in territory where planning measures are operative cannot be successfully challenged, but is the exercise of those rights subject to reasonable regulations in conformity with a plan adopted under the provisions of Section 713.25, Revised Code?
In attempting to answer this question, it must be borne in mind that the power of eminent domain enjoyed by the respondent and the power of Boards of County Commissioners to adopt and enforce planning measures both emanate from the same source, namely, the General Assembly, and both must be accorded recognition.
After carefully weighing the conflicting claims of the parties, a majority of this court has reached the conclusion that Sections 713.23 and 713.25, Revised Code, are sufficiently definite and comprehensive in their terms to include a public utility like respondent, and that respondent is subject to a plan duly adopted pursuant to Section 713.25. Certainly the opposite position would allow respondent to traverse the planned area with is power lines in any way it pleased, which course might well disrupt or even ruin the whole planning scheme, to the public detriment. This view hardly seems in keeping with the intent and purpose of the General Assembly in enacting the statutes relating to planning.
The remaining problems are less difficult. If, in the location and construction of its power lines through the planned territory, respondent has departed or is departing from the plan, as charged in the petition, it has the right, under Section 713.25, Revised Code, to request the Board of County Commissioners to approve such departure. For all we know, should such action be taken, any departure from the plan by respondent might be approved and that would solve the whole difficulty in respondent's favor in the townships involved.
If the action of the board is unfavorable to respondent, we think it would have the right of appeal to the courts. Concededly, neither Section 713.25, Revised Code, nor any related section mentions appeal. However, Section 307.56, Revised Code, found in Chapter 307, devoted to the powers and duties of Boards of County Commissioners provides:
"A person aggrieved by the decision of the Board of County Commissioners in any case, may appeal within 15 days to the Court of Common Pleas * * *." (Emphasis supplied.) Compare Eggers v. Morr et al., County Commissioners, 162 Ohio St. 521, 124 N.E.2d 115.
Respondent relies on the case of State, ex rel. Ellis, City Solicitor, v. Blakemore, Clerk, 116 Ohio St. 650, 157 N.E. 330, as supporting its claim that the Board of County Commissioners of Franklin County may not interfere with respondent's operations in such county. However, that case dealt with the right of an agency of the state government under express statutory authority to construct a viaduct on an intercounty or main market road as against the opposition of a municipality, and is hardly in point here.
Since a majority of this court is of the opinion that respondent is amenable to the provisions of Section 713.25, Revised Code, and since upon application to the Board of County Commissioners of Franklin County that agency might approve the construction and maintenance by respondent of its electric power lines through the planned territory as proposed by it, most of the separate defenses contained in the answer, assuming their validity, are premature and inappropriate at this time. We know of no statutory provision which invests the Public Utilities Commission with jurisdiction over a public utility in its acquisition of land preparatory to constructing and maintaining electric power lines, and, assuming the defense of laches or estoppel may properly be asserted in a quo warranto action against a Board of County Commissioners acting in a governmental capacity ( Ohio Electric Power Co. v. State, ex rel. Martin, Pros. Atty., 121 Ohio St. 235, 240, 167 N.E. 877, 878), such defense is hardly tenable here where it appears that respondent's power lines had not been completed through the planned territory prior to the adoption of the plan; and where respondent was fully aware that its activities in such territory were being carried forward in disregard of the protests of the Franklin County Regional Planning Commission, and that such activities would, in all probability, be contested in a court action.
For the reasons stated, the demurrer to the answer is sustained.
Demurrer sustained.
WEYGANDT, C.J., MATTHIAS and BELL, JJ., concur.
HART, STEWART and TAFT, JJ., dissent.
As I view this case, it involves a relatively simple problem of statutory construction. In order to prevail, relator must obviously rely upon that portion of Section 713.25, Revised Code, which provides that, after the Board of County Commissioners has adopted a plan, then in nonmunicipal territory "no public building, roadway, bridge, viaduct, or other public improvement or utility, publicly or privately owned, whose construction or location would constitute a departure from the plan, shall be constructed or authorized by the board except by unanimous vote."
It is equally obvious that, by the words "departure from the plan," the General Assembly meant a departure from something which was not only included in the plan but which the General Assembly authorized for inclusion in the plan. For example, if the General Assembly did not authorize the inclusion in a plan of anything with respect to an electric generating plant operated as a public utility, then there could be no departure from the plan with respect to the location of such plant, even though such plant would ordinarily be described by the words "public * * * utility, publicly or privately owned."
These statutes only authorize adoption of a plan made by a regional or county planning commission. In order to see what the General Assembly authorized for inclusion in such a plan it is necessary to examine the provisions of Section 713.23, Revised Code, which read:
"The regional or county planning commission shall make plans and maps of the region or county respectively, showing the commission's recommendation for systems of transportation, highways, park and recreational facilities, the water supply, sewerage and sewage disposal, garbage disposal, civic centers, and other public improvements which affect the development of the region or county respectively, as a whole or as more than one political unit within the region or county, and which do not begin and terminate within the boundaries of any single municipal corporation."
From a reading of the foregoing statute, it is apparent that, by no stretch of the imagination, could electric transmission lines be included within the words describing anything which is to be shown on the maps or plans of the planning commission unless included within the words "systems of transportation" or "other public improvements."
The meaning of the words "public improvements" might be stretched so as to include an improvement owned by a private corporation for use as a public utility. However, our decisions certainly indicate the conclusion that the words "public improvements" mean improvements owned by the public. City of Dayton v. Haines, Aud. (paragraph two of the syllabus), 156 Ohio St. 366, 369, 373, 102 N.E.2d 590.
The meaning of the words "systems of transportation" would also have to be expanded considerably beyond their ordinary meaning in order to have them include electric transmission lines. It may be argued that the transmission of electricity is the transportation of electricity. However, the word "transportation," when given its ordinary meaning, refers to the carrying, conveying or movement of persons and tangible property from one place to another. We do not ordinarily speak of transporting such an intangible element as electricity.
This court has held that laws "which impose restrictions upon the use * * * of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed." State, ex rel. Moore Oil Co., v. Dauben, Bldg. Insp., 99 Ohio St. 406, 124 N.E. 232, paragraph one of syllabus; State, ex rel. Ice Fuel Co., v. Kreuzweiser, Insp., 120 Ohio St. 352, 356, 166 N.E. 228.
It is only by expanding beyond their ordinary meaning the scope of the words used by the General Assembly in Section 713.23, Revised Code, that it can possibly be held that the General Assembly expressed an intention that a regional or county planning commission was to be authorized to include electric transmission lines in the plans or maps showing its recommendations. Any analysis of the words used by the General Assembly leads irresistably to the conclusion that the General Assembly did not express any such intention.
By the words of Section 713.23, Revised Code, the only things which may be included in plans or maps showing the recommendations of a planning commission are:
1. Systems of transportation.
2. Highways.
3. Park and recreational facilities.
4. Water supply.
5. Sewerage and sewage disposal.
6. Garbage disposal.
7. Civic centers.
8. Other public improvements.
The words of these eight categories are further limited to such of those items "which affect the development of the region or county respectively, as a whole or as more than one political unit within the region or county." Although it might be said that anything done or located in a region may affect the development of a region, it is fairly apparent that that is not what the General Assembly meant by the use of those words. In the case of a regional plan, those words were apparently intended to limit the items set forth in each of those eight categories to items having a regional flavor as distinguished from those having an extraregional flavor. It is obvious that the items specified in categories three, four, five, six and seven would all necessarily have only a regional flavor. Those specified by the general words used with respect to one, two and eight might have only a regional flavor although, if they stood alone, they might conceivably be given a more extended meaning. It is significant that, as to each of the five categories where the legislative language is specific, each such category necessarily has a regional flavor only. It is, therefore, reasonable to conclude that the General Assembly intended similarly to limit the general words used with respect to the other three categories, especially since they are reasonably susceptible to such a limitation. If the General Assembly had even used a word as specific as "railroads," it could reasonably be argued that, since railroads ordinarily would include something having more than a regional flavor, the general words used with respect to categories one, two and eight could include something having more than a regional flavor. However, in no instance where the General Assembly used specific language did it describe anything which could reasonably have more than a regional flavor. See State, ex rel. Ellis, City Solr., v. Blakemore, Clerk, 116 Ohio St. 650, 157 N.E. 330.
The words in Section 713.25, Revised Code, "other public * * * utility, publicly or privately owned," clearly refer to public utilities such as water companies and local transportation systems (possibly also those specified in categories five and six) which were often privately owned at the time of enactment of these statutes in 1923.
It may be observed that the implications of relator's contentions in the instant case are very broad. If his contentions are sustained, there can be no statewide or interstate highways, turnpikes, railroads, telephone and telegraph lines, or oil or gas pipelines in an area covered by a regional or county plan without the unanimous approval of the county commissioners. Furthermore, every county might exercise such powers, thus creating a great burden of local controls upon statewide and interstate facilities. In my opinion, unless the language used by the General Assembly clearly indicates that it intended such revolutionary consequences, we should hesitate to extend that language beyond its ordinary meaning in order to effect such consequences. It is not the province of this court to so legislate.
HART and STEWART, JJ., concur in the foregoing dissenting opinion.