While I concur essentially with the judgment of the majority, I dissent from the conclusion that the case be reopened for more evidence.
The suburbs' primary complaint has been their lack of representation in the setting of rate hikes which they consider too high. On the other hand, the city of Cleveland argues that it has been unable to provide the maintenance the suburbs demand, because the suburbs have vehemently and consistently opposed rate increases and thereby stymied the city of Cleveland in its efforts to secure the issuance of needed bonds.
This vexing case constitutes the culmination of a complex, protracted litigation process which has been conducted over many years between the city of Cleveland, the purveyor of potable water, and some sixty suburbs which rely *Page 95 entirely upon the city for their water supply. The decision of the trial court below is a laudable and ambitious attempt to reorganize and stabilize an antiquated water supply system under existing law. Notwithstanding the praiseworthy efforts of the trial court, I am convinced that neither law nor the broad powers of equity confer the authority to order the relief given below.
I concur with the majority that both R.C. Chapter 6119 and Section 4, Article XVIII, of the Ohio Constitution prohibit the involuntary inclusion of the city of Cleveland into a regional water entity. A review of R.C. Chapter 6119 discloses that the legislature promulgated only the procedure to be employed in establishing a regional water district. The language of the various sections contemplating the creation of such a district provide that municipalities must initially have their petitions authorized by their legislative authorities (R.C. 6119.02); or, that they may later petition to be included in whole or in part, or to reduce part of their proposed territory from the district (R.C. 6119.04[B]).
Finally, R.C. 6119.06(M) provides that the district, once created, may petition the Court of Common Pleas to permit the district to:
"Acquire, in the name of the district, by purchase or otherwise, on such terms and in such manner as it considers proper, or by the exercise of the right of condemnation in the manner provided by section 6119.11 of the Revised Code, such public or private lands, including public parks, playgrounds, or reservations, or parts thereof or rights therein, rights-of-way, property, rights, easements, and interests as it considers necessary for carrying out Chapter 6119 of the Revised Code, but excluding the acquisition by the exercise of the right of condemnation of any waste water facility or water management facility owned by any person or political subdivision, and compensation shall be paid for public or private lands so taken[.]"
By conveying Cleveland's water system to the regional authority, the lower court has taken away from the city of Cleveland, by fiat, that which cannot be achieved by condemnation — contrary to the mandate of Section 4, Article XVIII, of the Ohio Constitution, which vests in the city of Cleveland the right of complete autonomy over the operation of its water works. Cf.State, ex rel. McCann, v. Defiance (1958), 167 Ohio St. 313 [4 O.O.2d 369]. Nevertheless, in effect, the court granted condemnation without compensation.
As such, the order of the trial court is contrary to law.
Despite the admittedly desirable purpose of equity to fashion a flexible remedy for those problems not amenable to satisfactory resolution by law, one cannot simply do in the name of equity that which the law expressly prohibits. Equity complements, often supplements, but never legislates.
The express limitations imposed by R.C. Chapter 6119 and Section 4, Article XVIII of the Ohio Constitution cannot be circumvented by the equitable remedies ordered by the trial court. The scope and breadth of this ostensibly unworkable situation demand resolution by the state legislature. It is the legislature which acknowledged in R.C. Chapter 6119 that municipalities have the constitutional right to operate their own water system free from intervention by a new political entity — a regional water district. It is the function of the trial court, delegated by the legislature under R.C. Chapter 6119, to ensure the orderly creation of a regional water district. Its function does not include the determination that the new entity should replace the municipality.
Until such time as the legislature deems it proper to vest in the trial court such extraordinary power, the city of Cleveland must retain its autonomy over the operation of its water system, subject to the good faith obligation to which it *Page 96 contracted17 to provide the suburbs with an adequate water supply.
While acknowledging that the trial court cannot support its decision under law, the majority concludes that equity may well offer an alternative means with which to devise a remedy. However, the majority finds that the trial court invoked its equity powers prematurely and therefore orders the marshalling of "fresh" evidence to resolve the murky issues confronting us.
Simply stated, the majority is reopening a case the parties believed had been closed as fully litigated, notwithstanding that our constitutional scope of review is restricted to affirming, reversing or modifying the lower court's decision. Section 3, Article IV, Ohio Constitution. In my judgment our prerogative to modify cannot be construed as authority to reopen a case to hear additional evidence. Indeed, if this case is reopened and returns here some two years hence, will we once again decide that "fresher" evidence is required, and thereby generate more litigation?
After more than two decades of dispute and litigation, after considerable deliberation by the trial court upon voluminous evidence, must we still maintain that we require more evidence before finally reaching a decision? The litigants did not think so. Nor did the lower court. Nor did the majority since they found that the record will not support the conclusion that there was an abuse of discretion in the management of the water system (see Part VI B, supra, majority opinion).
In short, I generally concur with the judgment of the majority, except for its decision to remand for "hearing for an update on the condition of the Cleveland water system," as mandated in Part VI D, supra, of the majority opinion.
17 Contracts executed in 1941 were signed by the city of Cleveland, while contracts drawn in 1951 were not signed by the city of Cleveland.