Opinion · Ohlaw Ohio
STATE EX REL. v. EUCLID, 169 Ohio St. 476 (1959)
STATE, EX REL. THE CLEVELAND Elec. ILLUMINATING CO., APPELLEE, v.CITY OF EUCLID ET AL., APPELLANTS.[fn*], 159 N.E.2d 756 (Ohio 1959)
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1959-07-15
- Topic
- general
STATE EX REL. v. EUCLID, 169 Ohio St. 476 (1959) 159 N.E.2d 756 THE STATE, EX REL. THE CLEVELAND ELECTRIC ILLUMINATING CO., APPELLEE, v.CITY OF EUCLID ET AL., APPELLANTS.[fn*] No. 35907Supreme Court of Ohio. Decided July 15, 1959. [fn*] Motion for rehearing allowed. August 12, 1959.
Citator
UpLaw has not yet analyzed STATE EX REL. v. EUCLID, 169 Ohio St. 476 (1959). The absence of a flag is not a finding that it is good law.
STATE EX REL. v. EUCLID,169 Ohio St. 476(1959)
159 N.E.2d 756
THE STATE, EX REL. THE CLEVELAND ELECTRIC ILLUMINATING CO., APPELLEE, v.
CITY OF EUCLID ET AL., APPELLANTS.fn*
No. 35907
Supreme Court of Ohio.
Decided July 15, 1959.
1. A municipal corporation may prescribe reasonable regulations for the installing of electric power lines through or into its territorial limits and may withhold its consent for the installation of such power lines until such regulations are complied with. (Sections715.27,4933.13and4933.16, Revised Code, construed and applied.)
2. A municipal ordinance which provides that all electric power lines installed within or through the municipality's territorial limits and carrying greater voltage than 33 KV (33,000 volts) shall be installed underground is not an unreasonable regulation unrelated to the health, safety and welfare of the inhabitants of the municipality.
This action in mandamus originated in the Court of Appeals, wherein the relator, The Cleveland Electric Illuminating Company, seeks to compel the respondent city of Euclid to issue a permit for the construction of an overhead electric transmission line to carry electrical energy at a voltage of 132,000 volts over certain streets in the respondent city.
The city refuses to issue such permit primarily for the reason that the application is for a permit to constructoverheadtransmission lines carrying electrical energy in excess of 33,000 volts, which would be contrary to ordinance No. 78-1957 of such city requiring such lines to be placedunderground.That ordinance reads as follows:
"Whereas, this council finds that it is necessary to provide for the safety, welfare, comfort and convenience of inhabitants of the city of Euclid, and
"Whereas, this council further finds that increasinglyPage 477higher voltages of electric power are being carried to and through urban centers and cities such as the city of Euclid, and that provision must be made whereby such power lines are so constructed and maintained as to provide the greatest safety factors for persons using the public streets and ways, as well as those persons occupying private property and to provide quiet and peaceable possession of the same, and
"Whereas, making provision for such high tension lines also provides for the usual daily operation of municipal departments.
"Now, therefore, be it ordained by the Council of the City of Euclid, state of Ohio:
"Section 1: That ordinance No. 288-1956, passed December 3, 1956, be and the same is hereby amended and supplemented by adding the following new section, to be known as Section 2.1, which shall read as follows:
"Section 2.1:Permit issued by council.
"It shall be unlawful to construct or maintain an electric power line carrying greater voltage than 33 KV, without first obtaining a permit therefor from the council. No charge shall be made for such permit. The applicant shall first file plans and specifications, which shall show the course and route of such proposed line in or through the city of Euclid. Such line shall be installed underground, at a minimum depth of six feet below grade. It shall be backfilled by and laid in at least six inches of sand. It shall be standard underground pipe-type cable, lead covered, to be no less than the standard minimum A.E.I.C. specification as to voltage, herein adopted. Such line shall be encased in an enclosed sealed and welded steel pipe with protective sheath, having a somatic coating. Such pipe may either be oil or gas filled and shall be capable of withstanding any maintained pressure."
The Court of Appeals referred the case to a special master who found such ordinance unconstitutional on the basis that it is not a lawful exercise of the police power and recommended that a writ of mandamus issue. The Court of Appeals adoptedPage 478the special master's report as its conclusions of law and fact and issued the writ.
The cause is before this court on an appeal as of right from the judgment of the Court of Appeals.
There is no question that such companies are subject to reasonable regulation in relation to the construction of their lines.
Section715.27, Revised Code, provides:
"Any municipal corporation may:
"* * *
"(B)Regulate the construction and repair of wires, poles,plants, and all equipment to be used for the generation andapplication of electricity* * *." (Emphasis added.)
Section4933.13, Revised Code, provides:
"A company organized for supplying electricity for power purposes, and for lighting the streets and public and private buildings of a municipal corporation, may manufacture, sell, and furnish the electric light and power required in such municipal corporation for such or other purposes.With the consent of themunicipal corporation, under such reasonable regulations as suchmunicipal corporation prescribes, such company may constructlines for conducting electricityfor power and light purposes through the streets, alleys, lanes, lands, squares, and public places of such municipal corporation, byPage 479the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires." (Emphasis added.)
Section4933.16, Revised Code, provides:
"No person or company shall place, string, construct, or maintain a line, wire, fixture, or appliance of any kind to conduct electricity for lighting, heating, or power purposes through a street, alley, lane, square, place, or land of a municipal corporationwithout the consent of such municipalcorporation.
"This prohibition extends to all levels above or below the surface of such public ways, grounds, or places, as well as along their surfaces, but not to rights received through and exercised under proceedings of a Probate Court prior to February 26, 1910.
"The penalty provided by Section4933.99of the Revised Code for a violation of this section is cumulative to other means of enforcing this section open to the municipal corporation, by way of injunction or otherwise, and is not exclusive." (Emphasis added.)
As may be seen from the above sections, not only are municipal corporations specifically empowered to impose reasonable regulations in respect to the construction of the lines of such electric power companies, but such sections also provide that the consent of the municipality must be obtained before such lines are constructed. The requirement of consent necessarily implies that the municipality may impose reasonable regulations and conditions as to such construction as a condition to its consent. To interpret such requirement otherwise would be to hold that the requirement of consent is a mere empty thing of no meaning. This we cannot do, since it is a basic presumption in statutory construction that the General Assembly is not presumed to do a vain or useless thing, and that when language is inserted in a statute it is inserted to accomplish some definite purpose.
It being determined that a municipal corporation may impose reasonable regulations upon an electric power company in the construction of its lines, is a regulation requiring high-voltage wires to be placed underground reasonable?Page 480
The test for determining whether certain legislation constitutes a valid exercise of the police power was set out by this court in the first paragraph of the syllabus ofTeegardinv.Foley,166 Ohio St. 449,143 N.E.2d 824, as follows:
"In order to constitute a valid exercise of the police power, legislation must directly promote the general health, safety, welfare or morals and must be reasonable, the means adopted to accomplish the legislative purpose must be suitable to the end in view, must be impartial in operation, must have a real and substantial relation to such purpose and must not interfere with private rights beyond the necessities of the situation. (Paragraph three of the syllabus ofFroelichv.City ofCleveland,99 Ohio St. 376, approved and followed.)"
Judicial notice may be taken that high-voltage electricity by its nature is a very dangerous commodity, and that high-voltage electric wires stretched across public streets constitute a danger to the traveling public. 18 American Jurisprudence, 508, Electricity, Section 112.
The fact that in our present civilization electricity has become a necessity and is a matter of everyday use in no way affects its dangerous character. Modern science and engineering have perfected safety devices which have made it usable with a reasonable degree of safety. However, so-called high-tension wires, carrying heavy-voltage current, still remain a source of great danger. While methods of installing and maintaining overhead lines have improved and mechanical safety devices have been perfected which have reduced the danger, the danger is still there. Mechanical safety devices fail, and, in spite of engineering advancements, metal in electric-power-line towers may still crystallize, insulators fail or, for some unexplainable reason, such a tower may give way creating a tremendous hazard to life and property.
Relator contends that its lines will go through an industrial district, and that, therefore, there is no reason to require underground installation. If our problem was purely a question of aesthetics, relator's arguments would be valid. However,Page 481we are not concerned primarily with the aesthetic but must direct our attention to the question of public safety. The danger created by high-voltage wires in an industrial district, with its storage tanks of inflammable and explosive materials, the moving of heavy trucks, cranes and other machinery and its heavy population of workers, is equal to if not greater than in residental districts.
Considering the dangerous propensities of high-voltage electricity, it is our conclusion that a requirement by a municipality that high voltage wires be placed underground constitutes a reasonable exercise of the police power.
The last issue which must be determined is the effect of the original franchise granted relator by the municipality in 1906.
The pertinent parts of the ordinance (No. 32) which grants the franchise are as follows:
"An ordinance granting the Cleveland Electric Illuminating Company and its successors, the right to erect, construct, maintain and use the necessary poles, wires, conduits and such other fixtures and appliances, overhead and underground, as may be deemed by it or them necessary or essential to enable it or them to transmit electricity through and along the streets, alleys and ways of the village of Euclid, for the purpose of furnishing to said village, the general public and private persons, light, heat and power by electric currents.
"Section 1: Be it ordained by the Village Council of the Village of Euclid, State of Ohio, that the Cleveland Electric Illuminating Company and its successors, be, and they are hereby granted the right to erect, construct, maintain and use the necessary poles, wires, conduits, and such other fixtures and appliances overhead and underground, as may be deemed by it or them necessary or essential to enable it to transmit electricity through and along the streets, alleys and ways of the village of Euclid for the purpose of furnishing to said village the general public and private persons, light, heat and power by electric currents.Page 482
"Section 2: All wires used by the Cleveland Electric Illuminating Company shall be properly insulated, and shall comply with all state regulations and ordinances to be passed by this village requiring proper insulation and until such ordinances are passed, all of said wires shall comply, as regard to insulation, with the ordinances of the city of Cleveland.Andthis grant shall be subject to all general ordinances now orhereafter in force in said village.
"Section 3: The Cleveland Electric Illuminating Company or its successors shall, before any work is commenced, submit to the proper officers of the village, plans, showing the work it proposes to do in the erection of poles, wires, appliances, or in the building of conduits,and receive a proper permit thereforeach time before any new work shall be undertaken, and they shall be kept upon file in the office of the village clerk with a proper record, showing that a permit for their construction has been entered, andthereuponthe Cleveland Electric Illuminating Company or its successors shall have the right to proceed with its or their work in accordance with the plans and specifications placed on file by it or them." (Emphasis added.)
It is relator's contention that such franchise constitutes a contract, and that the municipality can impose no regulations or conditions as to the construction of lines which are not provided therein.
We assume, without deciding, that the franchise evidenced by the ordinance is a contract, and we note that the emphasized portions of the ordinance specifically reserve to the municipality the right to impose additional regulations by ordinance in the future. However, even had such reservations not been specifically included in the contract, it is nevertheless subject to police regulations. In the third paragraph of the syllabus ofCity of Akronv.Public Utilities Commission,149 Ohio St. 347,78 N.E.2d 890, this court said:
"All contractsare subject to the paramount rights of the public, andall contractsthe subject matter of which involves the public welfarewill have read into themwith the same forcePage 483and effect, as if expressed in clear and definite terms,allvalid public regulationsthen existing orthereafter enacted, essentialfor the promotion of the health, safety and welfare ofthe people.The authority of the state to exercise its general police power must be recognized as an implied condition ofanysuch contract." (Emphasis added.)
Thus, even though this franchise were a contract, it would still be subject to regulations adopted as a valid exercise of the police power, and, we having determined that the ordinance in question constitutes a valid exercise of the police power, the contract would be subject thereto.
Since under the terms of ordinance No. 78-1957 relator has no right to erect power lines carrying more than 33,000 volts above ground, it has no right to the relief prayed for.
In conclusion, we find:
I. Sections715.27,4933.13and4933.16, Revised Code, specifically provide that by virtue of its police power a municipality may prescribe reasonable regulations for the installing of electric power lines through or into its territorial limits and may withhold its consent for the installation of such power lines until such regulations are complied with.
II. A municipal ordinance which provides that all electric power lines installed within or through the municipality's territorial limits and carrying greater voltage than 33 KV (33,000 volts) shall be installed underground is not an unreasonable regulation unrelated to the health, safety and welfare of the inhabitants of the municipality.
For the reasons herein set out, the judgment of the Court of Appeals is reversed.Judgment reversed.
ZIMMERMAN, TAFT and BELL, JJ, concur.
WEYGANDT, C.J., HERBERT and PECK, JJ., dissent.
I agree with paragraph one of the syllabus but dissent from paragraph two and, therefore, the judgment.
In the case ofCity of Cincinnativ.Correll,141 Ohio St. 535,49 N.E.2d 412, Bell, J., stated, at page 539, what the writer considers to be a sound summation of the legal principle involved:
"If an enactment is referable to the police power, to be valid, the court must be able to say that it tends in some substantial degree to the prevention of offenses, or the preservation of the health, morals, safety or general welfare of the public. Therefore, if it is apparent that there is no plausible, reasonable and substantial connection between the provisions of the act and the supposed evils to be suppressed, there exists no authority for its enactment."
The sole issue here is whether the recent ordinance of the city of Euclid requiring electric power lines carrying greater voltage than 33 KV to be placed under ground is a reasonable exercise of the police power of the city. Here, the proposed transmission lines carrying 132,000 volts would be supported on steel towers placed on reinforced concrete footings, with the average height of each tower to be 85 feet. The clearances between the conductor lines and ground levels where they would cross streets would vary from 52 to 64 feet, and each tower would be completely grounded for safety purposes to protect against lightning striking a tower.
Most of the factual evidence presented before the master was undisputed. The master found that an automatic relayPage 485system would cut off the flow of electricity through the conductors and de-energize the line in about 1/20 of a second if it became damaged or severed, and that before a line could strike the ground it would be rendered harmless. Each line is a little less than one inch in diameter, most of the strands making up the line being aluminum and having an inner core of plow steel which substantially increases the strength of the line but is not itself a conductor of electricity.
The master's report shows that a wire carrying 33,000 volts is of far less tensile strength than that of a conductor of a 132,000-volt line, and, of course, it is obvious that wooden poles may be blown down by high winds or knocked down, in contrast to the high towers which the relator here proposes to erect entirely on its presently owned right of way.
The master reported that the relator introduced evidence that, "in 1953, the Cleveland area was subjected to a tornado, yet it caused no damage to any of relator's 132,000 volt steel tower lines. Furthermore, relator's evidence shows that there are 428 roads and streets which are crossed by 877 single circuit conductors of its existing 132,000 volt lines — 502 of which are within the confines of municipalities — and that its 30 years of record keeping disclose no instances of such lines being down on any roads or streets. It should, perhaps, be mentioned that in comparison with the aforesaid 877 crossings, there will be only 12 such crossings for relator's proposed tower line in the city of Euclid, of which two circuit crossings are over a `paper' street which is not yet constructed. There is, of course, no danger of trees falling across the proposed line since there are none standing on the right of way along which the line will pass. Relator's evidence did disclose, however, that in its 30 years of record keeping there were nine instances of accidents affecting its 614.19 circuit miles of 132,000 volt lines. Some of these were most unusual. For example, in 1928 a careless aviator flew into a line and brought down two conductors. In 1929, an oil pipeline near a tower sprang a leak. The oil was ignited by sparks from a passing locomotive and the heat from thePage 486oil fire dropped one of the conductors. In 1933, a conductor was brought down by a rifle bullet. In 1955, there were two cases where the lines had been dynamited by vandals. In two instances, not in the Cleveland area, a line came down due to an unusually heavy formation of ice. The evidence discloses, however, that at those times the ultimate strength of the conductors which came down was only 9,000 pounds; that the ultimate strength of the conductors of the proposed line is 25,000 pounds. * * * In none of these instances, except in the case of the aviator, was anyone injured and no person's property, other than relator's, was damaged."
Suffice to say that on the record of the undisputed evidence presented in this particular case, the ordinance under consideration here, which forbids an overhead installation such as proposed with all the modern safeguards, is not sufficiently related to the health, safety and welfare of the inhabitants of Euclid as to be a reasonable exercise of the police power.
A court should not, of course, interpose its judgment as to reasonableness of an enactment above the legislative determination unless the enactment appears clearly unreasonable. Here, the evidence leaves no other conclusion open to the writer.
Each case such as this finally comes down to an issue as to what is a proper balance between public interest and private rights. What the future may hold with respect to atomic energy plants, and perhaps as yet undreamed of developments, is, of course, open to conjecture, but, in the instant case, I would affirm the judgment of the Court of Appeals.
WEYGANDT, C.J., and PECK, J., concur in the foregoing dissenting opinion.Page 487
- Motion for rehearing allowed. August 12, 1959. For later report in this litigation, see 170 Ohio State Reports. ↩