Vernon v. Warner Amex Cable Communications, Inc.

Per Curiam.

Appellants contend that a legislative body cannot declare *119something to be a “public utility” which clearly is not. In support of this position, appellants rely on Greater Fremont, Inc. v. Fremont (N.D. Ohio 1968), 302 F. Supp. 652, 665, where it was stated in dictum that a CATV was not a public utility. Appellants essentially argue that R.C. 5727.01, 4905.02 and 4905.03 provide statutory definitions of what is a public utility, and that a CATV is not included in any of these definitions. Appellants further submit that Sections 3 and 7, Article XVIII of the Ohio Constitution, more popularly known as the “home rule” provisions, do not rescue the city from its actions because the ordinances in issue, according to appellants, conflict with the general laws enunciated in the three cited statutory sections.

Appellees both submit that the subject ordinances are a valid exercise of the municipality’s police powers, and do not conflict with the general laws of the state. Appellees contend that the statutory definitional provisions are applicable only to the statutory chapters in which they appear, and that the definitions of what constitutes a public utility within those provisions was not intended as an exhaustive or exclusive listing to be applied in all cases.

The dispositive issue before us is not whether a CATV is a public utility in the traditional or statutory sense; most courts have rightly held that CATVs are not within the traditional definition of public utility. See, e.g., Montville Bd. of Twp. Trustees v. WDBN, Inc. (1983), 10 Ohio App. 3d 284; and Fremont, supra. Rather, the determinative issue before this court is whether a municipality may authorize and characterize a CATV as a public utility within its environs, in a manner consistent with its home rule and police powers. For the reasons that follow, we hold that pursuant to its home rule and police powers, the city possesses the ability to designate CATVs as a public utility, since such designation does not run afoul of the city’s charter or the general laws of the state.

In reviewing the charter and ordinances of the city of Akron, we find that the term “public utility” is not accorded any specific definition. However, under Sections 39 and 42 of the Akron City Charter, the city does implement the term “public utility” in requiring that such enterprises obtain franchises, and in allowing them to use public properties without the consent of the abutting landowners.

We reject appellants’ assertion that a public utility is necessarily limited to the definitions set forth in R. C. 4905.02, 4905.03 and 5727.01, because those definitions are relevant solely to the statutory chapters in which they are located.

Appellees contend that we should follow our precedent in Southern Ohio Power Co. v. Pub. Util. Comm. (1924), 110 Ohio St. 246, where this court stated in paragraph two of the syllabus:

“To constitute a ‘public utility,’ the devotion to public use must be of such character that the product and service is available to the public *120generally and indiscriminately or there must be the acceptance by the utility of public franchises or calling to its aid the police power of the state.”

Similar to the statutory sections cited by appellants, our definition in Southern Ohio Power Co. is helpful in determining what constitutes a “public utility.” However, such definitions are not dispositive of the central issue in this cause. As stated before, while we believe that CATVs are not “public utilities” in the traditional sense, we are persuaded that such a system could be reasonably classified as something analogous to traditional public utilities. See Fremont, supra, at 656. Nevertheless, the semantics employed in the city ordinances, and the arguments raised by all parties concerning what is or is not a “public utility,” do not sufficiently answer the core question of the instant controversy, i.e., whether the city’s authorization and regulation of CATVs constitutes a proper exercise of its police and home rule powers.

Section 3, Article XVIII of the Ohio Constitution provides that:

“Municipalities shall have authority 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 7 of Article XVIII states that:

“Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”

In Perrysburg v. Ridgway (1923), 108 Ohio St. 245, this court held in paragraph two of the syllabus:

“The power to establish, open, improve, maintain and repair public streets within the municipality, and fully control the use of them, is included within the term ‘powers of local self-government.’ ”

In Ohio Bell Tel. Co. v. Watson Co. (1925), 112 Ohio St. 385, it was stated at 389:

“The fee to streets within municipalities in Ohio rests in trust in the municipality for street purposes, subject to the abutting owner’s rights to ingress and egress, light, and air. * * *”

The foregoing precedents leave no doubt that the regulation of the use of publicly owned or controlled property is an inherent exercise of a municipality’s powers of local self-government, which necessarily include the municipality’s police powers. See, also, DiBella v. Ontario (1965), 4 Ohio Misc. 120 [33 O.O. 2d 170].

There is also no question that the grass strips located in the city’s right-of-ways, upon which the grey metal boxes are located, are the property of the city in which appellants have no easements, and which the city can allow Warner to use, in order to insure a safe and efficient CATV distribution system. See Gas Light & Coke Co. v. Columbus (1893), 50 Ohio St. 65; and DiBella, supra.

Since the city has the inherent power to regulate the grass strips upon *121which Warner’s grey metal boxes are situated, our final inquiry is whether the city’s designation of a CATV as a “public utility” is in conflict with the general laws of the state.

Having already determined that R.C. 4905.02, 4905.03 and 5727.01 do not provide the exclusive definitions of what constitutes a public utility, it follows that the city ordinances in issue are not in conflict with these general laws of the state. By the same token, we are unable to find any other statute that could even remotely conflict with city ordinances in issue. Therefore, we hold that Akron Ordinances_818.01 and 818.02 do not conflict with the general laws of the state of Ohio.

Turning our attention to the city’s designation of a CATV as a “public utility,” we are persuaded that such designation, while non-traditional, was nevertheless a proper exercise of the city’s home rule and police powers. As noted by the court of appeals below, “* * * [t]he inclusion of CATV systems within the meaning of the phrase ‘public utility’ is a logical one, because in the development and operation of a CATV’s own distribution network, it is very much like the more traditional public utilities and begs for the same regulation to ensure that the system of cables, wires, and poles is erected and maintained in a safe and efficient way. * * * [Fremont, supra]. It is within a municipality’s power to protect the public health and welfare regulating the establishment and maintenance of a CATV’s distribution network. * * *”

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Locher and C. Brown, JJ., concur. Holmes, J., concurs in judgment only. Douglas and Wright, JJ., concur in judgment only, with opinion.