State ex rel. Cleveland Electric Illuminating Co. v. City of Euclid 169 Ohio St. 476

Matthias, J.

The determinative issue in this case is whether a municipal ordinance requiring electric power companies to place wires carrying in excess of 33 KV (33,000 volts) underground constitutes a valid exercise of the police power.

There is no question that such companies are subject to reasonable regulation in relation to the construction of their lines.

Section 715.27, Revised Code, provides:

“Any municipal corporation may:

ÍÉ* *

“(B) Regulate the construction and repair of wires, poles, plants, and all equipment to be used for the generation and application of electricity * * (Emphasis added.)

Section 4933.13, 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 the municipal corporation, under such reasonable regulations as such municipal corporation prescribes, such company may construct lines for conducting electricity for power and light purposes through the streets, alleys, lanes, lands, squares, and public places of such municipal corporation,- by *479the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires.” (Emphasis added.)

Section 4933.16, 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 corporation without the consent of such municipal corporation.

“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 Section 4933.99 of 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?

*480The 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 of Teegardin v. 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 of Froelich v. City of Cleveland, 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. How*481ever, we 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.

*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. And this grant shall be subject to all general ordinances now or hereafter m 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 therefor each 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, and thereupon the 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 of City of Akron v. Public Utilities Commission, 149 Ohio St., 347, 78 N. E. (2d), 890, this court said:

“All contracts are subject to the paramount rights of the public, and all contracts the subject matter of which involves the public welfare will have redd into them with the same force *483and effect, as if expressed in clear and definite terms, all valid public regulations then existing or thereafter enacted, essential for the promotion of the health, safety and welfare of the people. The authority of the state to exercise its general police power must be recognized as an implied condition of any such 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. Sections 715.27, 4933.13 and 4933.16, 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, Taet and Bell, JJ, concur.

Weygandt, C. J., Herbert and Peck, JJ., dissent.

Herbert, J.,

dissenting. There is no dispute among the members of the court as to the general law applicable to this *484particular case. While the majority opinion cites 18 American Jurisprudence, 508, Section 112, to the effect that judicial notice may be taken that high-voltage electricity is a very dangerous commodity, and that high-voltage electric wires stretched across public streets constitute a danger to the traveling public, it is also noted in 20 American Jurisprudence, 132, Section 129, that “a court will judicially notice that electricity can be safely conducted and used as an agent for the production of light, heat, and power.”

I agree with paragraph one of the syllabus but dissent from paragraph two and, therefore, the judgment.

In the case of City of Cincinnati v. 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 relay

I *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 the *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 legislature 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.