I concur in the opinion as written above, but I feel that the issues before this court should be further clarified.
Preliminarily, I note that the city of Columbus is a municipality operating pursuant to a charter as authorized by Section 3, Article XVIII of the Ohio Constitution. Such municipalities are permitted "to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." Section 3, ArticleXVIII, Ohio Constitution. Further, Ohio municipalities are authorized by Sections 4 and 6, Article XVIII, Ohio Constitution, to own and operate a public utility.
Upon adoption of the Columbus City Charter, the city assumed "all powers * * * granted to [Ohio] municipalities by the constitution or laws of [the state of] Ohio[.]" Section 1, Columbus City Charter. However, Section 232 of the Columbus City Charter states that:
"All general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances or resolutions hereafter enacted by the city council, shall be applicable to this city; provided, however, that nothing contained in this charter shall be construed as limiting the power of the city council to enact any ordinance or resolution not in conflict with the constitution of the state or with express provisions of this charter."
In a prior action, this court addressed similar, if not the same, issues that are present in this matter. See State ex rel.Smith v. Columbus (Apr. 24, 1979), Franklin App. No. 78AP-656, unreported, which states that: *Page 609
"* * * The findings of the trial court suggest that the City has the remedy of self-help by adopting a specific ordinance with respect to the fire hydrants in question. From the stipulated facts herein, it appears that the City has done nothing to avoid responsibility for maintenance of the fire hydrants other than to defend this action. The trial court suggests that the City may adopt an ordinance with respect to maintenance of the hydrants. Not having done so, and not pointing to any provision of its charter exempting it from maintenance of the hydrants in question, the City has not demonstrated any prejudice resulting to it even assuming that the trial court's findings both as to duty to maintain and the applicability of R.C. Chapter 743 are erroneous. * * *" Id. at 5-6.
Subsequent to the decision in Smith, the city of Columbus enacted Columbus City Code ("C.C.") 2517.06, which now reads, in pertinent part, as follows:
"* * * The Director of Public Utilities and Aviation may also approve the maintenance of fire hydrants lying outside the Columbus corporate limits. All other hydrants outside thecorporate limits, although attached to Columbus City Waterlines, are not a part of the water main system and not withinthe maintenance responsibility of the City of Columbus, unlessotherwise specifically provided for by contract or agreement." (Emphasis added.)
Thus, the city of Columbus in enacting C.C. 2517.06 ceased to be obligated to maintain fire hydrants located outside the Columbus city limits but attached to the water lines which are a part of the Columbus water system.
Having cured the problem addressed in Smith, it is necessary to examine the case law on the question of whether the Ohio legislature by the enactment of R.C. Chapter 743, or any other legislative pronouncements, can impose upon Ohio charter municipalities the duty to maintain water lines and fire hydrants located outside the municipal boundaries.
In the case of State ex rel. McCann v. Defiance (1958),167 Ohio St. 313, 4 O.O.2d 369, 148 N.E.2d 221, at paragraph one of the syllabus, the Supreme Court stated:
"The General Assembly has no power to enact any statute for the purpose of limiting or restricting by regulation or otherwise the power and authority of a municipality, that owns and operates a public utility for the purpose of supplying the product thereof to such municipality or its inhabitants, to sell and deliver to others the portion of the surplus product of such utility that it is authorized by Sections 4 and 6 of Article XVIII of the Constitution to sell and deliver to such others. (Swank v. Village of Shiloh [1957], 166 Ohio St. 415 [2 O.O.2d 401, 143 N.E.2d 586], Village of Euclid v. Camp Wise Assn. [1921], 102 Ohio St. 207 [131 N.E. 349], and Board of Educationv. City of *Page 610 Columbus [1928], 118 Ohio St. 295 [160 N.E. 902], approved and followed. City of Akron v. Public Utilities Commission [1948],149 Ohio St. 347 [37 O.O. 39, 78 N.E.2d 890], City ofCincinnati v. Roettinger, a Taxpayer [1922], 105 Ohio St. 145 [137 N.E. 6], City of Lakewood v. Rees [1937], 132 Ohio St. 399 [8 O.O. 213, 8 N.E.2d 250], Hartwig Realty Co. v. City ofCleveland [1934], 128 Ohio St. 583 [1 O.O. 233, 192 N.E. 880], and Travelers Ins. Co. v. Village of Wadsworth [1924], 109 Ohio St. 440 [142 N.E. 900], distinguished.)"
Paragraph two of the syllabus of McCann goes on to say that R.C. 743.13 which requires a municipality to furnish water to noninhabitants or limits the price which the municipality may charge for such water service is unconstitutional and void.
In the more recent case of Fairway Manor, Inc. v. Summit Cty.Bd. of Commrs. (1988), 36 Ohio St.3d 85, 86, 521 N.E.2d 818,820, Justice Douglas stated that:
"A municipally owned public utility is exempt from restriction or regulation by the General Assembly. Section 4, Article XVIII, Ohio Constitution; Swank v. Shiloh (1957),166 Ohio St. 415, 2 O.O.2d 401, 143 N.E.2d 586, paragraph one of the syllabus. * * *"
Finally, the Supreme Court, in the case of In re Complaint ofResidents of Struthers (1989), 45 Ohio St.3d 227,543 N.E.2d 794, at paragraph one of the syllabus, stated:
"The provisions of Section 4, Article XVIII of the Ohio Constitution are clear, specific and self-executing, and the powers therein enumerated are not subject to statutory restriction. (Pfau v. Cincinnati [1943], 142 Ohio St. 101, 26 O.O. 284, 50 N.E.2d 172, followed.)"
Therefore, even though Section 3, Article XVIII of the Ohio Constitution uses the language that Ohio municipalities may "adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general law," this language is not a limitation upon the authority of an Ohio municipality to acquire and operate a public utility. The authorization for such acquisition and operation is found in Sections 4 and 6, Article XVIII, Ohio Constitution, which have been interpreted by many cases to be self-executing and not subject to limitation by the legislative enactments of the Ohio legislature. McCann; Fairway Manor, Inc.; and In reComplaint of Residents of Struthers, supra. *Page 611