Ottawa Cty. Bd. Commrs. v. Marblehead

[This opinion has been published in Ohio Official Reports at 86 Ohio St.3d 43.]

BOARD OF COUNTY COMMISSIONERS OF OTTAWA COUNTY, APPELLANT, v.

VILLAGE OF MARBLEHEAD ET AL., APPELLEES.

[Cite as Ottawa Cty. Bd. Commrs. v. Marblehead, 1999-Ohio-80.]

Counties—Municipal corporations—County water supply systems—R.C. 6103.04

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.)

APPEAL from the Court of Appeals for Ottawa County, No. OT-97- 031.

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{¶ 1} 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 Marblehead.

{¶ 2} 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.

{¶ 3} Within days of the court of appeals’ decision, the residents within the

disputed area filed their petition with the Board seeking annexation to Marblehead.

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Before 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.

{¶ 4} 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,

reasonable. The court of appeals affirmed.

{¶ 5} 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.

{¶ 6} 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

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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.

{¶ 8} The cause is now before this court upon the allowance of a

discretionary appeal.

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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.

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COOK, J.

{¶ 9} 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.

{¶ 10} The Ohio Constitution authorizes a municipality to provide water

service to its residents to the exclusion of other providers. See Lucas v. Lucas Local

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School Dist. (1982), 2 Ohio St.3d 13, 2 OBR 501, 442 N.E.2d 449. 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 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.” This constitutional provision is part of

the municipal home-rule amendments that were proposed to remove “all legitimate

questions as to the authority of municipalities to undertake and carry on essential

municipal activities.” 2 Proceedings and Debates of the Constitutional Convention

of the State of Ohio (1913), at 1433.

{¶ 11} But, according to Marblehead, the statute at issue, R.C. 6103.04,

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

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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.”

{¶ 12} R.C. 6103.04 appears to contravene the constitutional 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), 53 Ohio St.2d 253, 260-261, 7 O.O.3d 410, 414,

374 N.E.2d 154, 159; Canton v. Whitman (1975), 44 Ohio St.2d 62, 68, 73 O.O.2d

285, 289, 337 N.E.2d 766, 771 (“An exercise of the police power necessarily

occasions some interference with other rights, but that exercise is valid if it bears a

real and substantial relationship to the public health, safety, morals or general

welfare, and if it is not unreasonable or arbitrary.”).

{¶ 13} In determining that R.C. 6103.04 is constitutional, we proceed from

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), 9 Ohio St.2d 159, 161, 38 O.O.2d 404, 405-406, 224 N.E.2d 906, 908-909;

State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 10 O.O.3d 408, 383 N.E.2d 892.

In addition, we note that in Columbus v. Pub. Util. Comm., 58 Ohio St.2d at 432,

12 O.O.3d at 364, 390 N.E.2d at 1204, this court explained that a spectrum of

relations exists between the state and its municipalities:

“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

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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 cases, 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, 12 O.O.3d at 364, 390 N.E.2d at 1204, quoting Teater, 53 Ohio

St.2d at 261, 7 O.O.3d at 414, 374 N.E.2d at 160.

{¶ 14} R.C. 6103.04 falls between the extremes. Accordingly, we balance

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 welfare 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, 497 N.E.2d 1112, 1113-1114. R.C. 6103.04

ensures stability of financing for county water service projects even in the face of

changing governmental entities.

{¶ 15} Having concluded that R.C. 6103.04 is a valid exercise of state

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.

{¶ 16} 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

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has abandoned such projects.” And this limited jurisdiction is only triggered by

an intervening 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.

{¶ 19} 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.

{¶ 20} Accordingly, the judgment of the court of appeals is reversed.

Judgment reversed.

YOUNG, PFEIFER and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, Acting C.J., SPELLACY and F.E. SWEENEY, JJ., dissent.

FREDERICK N. YOUNG, J., of the Second Appellate District, sitting for

MOYER, C.J.

LEO M. SPELLACY, J., of the Eighth Appellate District, sitting for RESNICK,

J.

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DOUGLAS, ACTING C.J., dissenting.

{¶ 21} I dissent from the 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.

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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.) To that end, the majority holds that “[b]ecause R.C. 6103.04

satisfies these requirements, it is not unconstitutional.”

{¶ 22} In reaching these conclusions, the majority relies primarily on 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. Teater (1978), 53 Ohio St.2d 253, 7 O.O.3d 410, 374

N.E.2d 154; and Canton v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337

N.E.2d 766. However, these cases, along with the “clear, specific and self-

executing” powers enumerated in Section 4, Article XVIII, see In re Complaint of

Residents of Struthers (1989), 45 Ohio St.3d 227, 543 N.E.2d 794, paragraph one

of the syllabus, do not support the conclusions reached by the majority.

Accordingly, because the majority has failed to properly interpret and apply the law

in this area, and because the majority has effectively renounced the clear grant of

constitutional authority provided to municipalities in Section 4, Article XVIII, I

must dissent. Indeed, today’s short-sighted holding will only further exacerbate the

problems associated with the establishment, servicing, and control of utility

services within land annexed by a municipality.

{¶ 23} Section 4, Article XVIII provides:

“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,

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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.)

{¶ 24} The language of Section 4, Article XVIII is unmistakable. Until

today, the clear language of Section 4 meant that a municipality could, 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.

{¶ 25} 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, 668 N.E.2d 889, 895-896 (Moyer, C.J., dissenting), citing Link v.

Pub. Util. Comm. (1921), 102 Ohio St. 336, 131 N.E. 796, paragraph two of the

syllabus; In re Complaint of Residents of Struthers, supra, paragraphs one and three

of the syllabus; Lucas, supra; Columbus v. Pub. Util. Comm., supra; and Columbus

v. Ohio Power Siting Comm. (1979), 58 Ohio St.2d 435, 12 O.O.3d 365, 390 N.E.2d

1208. See, also, Pfau v. Cincinnati (1943), 142 Ohio St. 101, 26 O.O. 284, 50

N.E.2d 172; and Swank v. Shiloh (1957), 166 Ohio St. 415, 2 O.O.2d 401, 143

N.E.2d 586, paragraph one of the syllabus (“The power to acquire, construct, own

or lease and to operate a utility, the product of which is to be supplied to a

municipality or its inhabitants, is derived from Section 4, Article XVIII of the

Constitution, and the General Assembly is without authority to impose restrictions

or limitations upon that power.”).

{¶ 26} Specifically, in Lucas, 2 Ohio St.3d at 14, 2 OBR at 502, 442 N.E.2d

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

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the municipalities with the comprehensive authority to deal with public utilities.”

Id., 2 Ohio St.3d at 14, 2 OBR at 502, 442 N.E.2d at 450, fn. 1. Additionally, we

also noted that “the first cases interpreting this provision described the municipal

powers over utilities as ‘plenary,’“ and that “[t]he Home Rule Amendments,

Section 4 included, are examples of the people taking a governmental function from

one body and placing it under the auspices of another.” Id., 2 Ohio St.3d at 14, 2

OBR at 502, 442 N.E.2d at 450. Hence, “municipalities were awarded jurisdiction

over public utilities which formerly rested in the domain of the General Assembly.”

Id. Therefore, we expressly held in Lucas, at paragraph one of the syllabus, that

“[c]ontracting for public utility services is exclusively a municipal function under

Section 4, Article XVIII, of the Ohio Constitution.” (Emphasis added.)

{¶ 27} Citing Lucas, the majority states that “[t]he Ohio Constitution

authorizes a municipality to provide water service to its residents to the exclusion

of other providers.” (Emphasis added.) “Exclusion” is defined as “[d]enial of entry

or admittance.” Black’s Law Dictionary (6 Ed.Rev.1990) 563. Moreover,

“exclusive” is defined as “[a]ppertaining to the subject alone, not including,

admitting, or pertaining to any others.” Id. at 564. Thus, it would seem to follow

that, since Marblehead has the absolute authority “to provide” water services to its

inhabitants to the “exclusion” of all other entities, any restriction or limitation

placed on Marblehead in this regard runs afoul of Section 4, Article XVIII.

{¶ 28} R.C. 6103.04 provides:

“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

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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

to 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.”

{¶ 29} 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 infringes” 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.

{¶ 30} 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, 2 Ohio St.3d at 15, 2 OBR at 503, 442 N.E.2d at

451. Clearly, Teater and Whitman involved such matters. However, Teater and

Whitman do not support the conclusions reached by the majority and both cases are

easily distinguishable from the case at bar.

{¶ 31} In Whitman, we held that the state may require a municipality to

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

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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 (prevention and control of dental caries), and, more

importantly, because the regulation did not limit the ownership or operation of a

municipal waterworks. Id., 44 Ohio St.2d at 68, 73 O.O.2d at 289, 337 N.E.2d at

771 (“The ownership and operation of a municipal waterworks is not limited by a

state requirement that fluorides be added to the water in the interest of the public

health * * *. The state, in fact, supplies the equipment necessary to add the

fluorides. * * * Fluoridation is plainly a matter involving the public health; there

is no indication that it unreasonably restricts, limits, or otherwise interferes with the

operation of a municipal utility.”). However, the case before us is clearly different.

The majority has extinguished, indefinitely, Marblehead’s exclusive right to

establish and provide water services to its residents. Moreover, the operation and

ownership of water services within the area annexed by Marblehead is not a matter

of statewide concern. Thus, the majority misapprehends Whitman by using

Whitman to elevate, herein, the purely local interests of appellant board over the

express constitutional authority of Marblehead to own and operate a public utility

within its municipal limits.

{¶ 32} The majority attempts to soften its holding by asserting that R.C.

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 court’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

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public utility without violating Section 4, Article XVIII. See Columbus v. Pub.

Util. Comm., 58 Ohio St.2d at 432, 12 O.O.3d at 364, 390 N.E.2d at 1204, relying

on McCann v. Defiance (1958), 167 Ohio St. 313, 4 O.O.2d 369, 148 N.E.2d 221.

Accordingly, Whitman does not support the position of the majority, and any

reliance by the majority on Whitman in reaching its holding is simply wrong.

{¶ 33} Likewise, Teater also lends no support to the holding rendered by

the majority. In Teater, the city of Columbus instituted a program for the

construction, operation, and maintenance of a new water supply reservoir located

outside its corporate limits on Big Darby Creek. The location of the reservoir was

also to be within the area proposed by the Director of Natural Resources as a “scenic

river area.” The director’s authority to designate the area as a protected “scenic

area” was in accordance with a state statute adopted pursuant to Section 36, Article

II of the Ohio Constitution. The effect of such a designation was to prohibit channel

modification of the watercourse. The city challenged the constitutionality of the

statute, urging, among other things, that it violated Section 4, Article XVIII.

{¶ 34} In finding the statute constitutional, this court recognized that the

area in question was located outside the city’s corporate limits and that the statute

at issue concerned matters of statewide import, namely, the conservation and

preservation of natural resources. Specifically, in Teater, 53 Ohio St.2d at 261, 7

O.O.3d at 414, 374 N.E.2d at 159-160, the court held:

“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

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outcome of the constitutional argument involved will depend upon the facts and

circumstances of the case.” (Emphasis added.)

{¶ 35} 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,

53 Ohio St.2d at 257, 7 O.O.3d at 412, 374 N.E.2d at 157, only if the statute is of

statewide concern, and the statute and the application of the home rule provision

establishing a public utility conflict outside the municipal limits. The significant

“extra-territorial effect,” which would have resulted from the city’s proposed water

supply reservoir, was material to the holding in Teater. See Columbus v. Pub. Util.

Comm., 58 Ohio St.2d at 433, 12 O.O.3d at 364, 390 N.E.2d at 1205; and Columbus

v. Ohio Power Siting Comm., 58 Ohio St.2d at 439, 12 O.O.3d at 368, 390 N.E.2d

at 1211. Thus, unlike the situation in Teater, here Marblehead is not attempting to

establish a water service system outside its boundaries. In this regard, the equal

dignity language and balancing test derived from Teater are not applicable to the

present case.

{¶ 36} Until today, this court has consistently protected the rights of a

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

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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, 12 O.O.3d at 368-369, 390 N.E.2d at 1212, quoting Whitman, paragraph

three of the syllabus.

{¶ 37} The law in Ohio is clear. Marblehead has the exclusive right to

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.

SPELLACY and F.E. SWEENEY, JJ., concur in the foregoing dissenting

opinion.

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