Ohio Municipal Control Over the Use of Municipal Streets by Utility Companies
Is Municipal Control Over the Use of Municipal Streets by Utility Companies An Exercise of Police Power or a Power of Local-Self Government ?
In State ex rel. Klapp v. Dayton Power & Light Co. (1967), 10 Ohio St.2d 14, 39 O.O.2d 9, 225 N.E.2d 230, a municipality sought, by way of a quo warranto action, a declaration that a privately owned public utility company did not have a valid franchise for use of the municipality's streets, and for an order that would require the company to remove its poles, wires, and equipment from the municipality's public ways, and abandon local service.
It sought that order without first satisfying a state-law requirement, under the Miller Act, that the dispute be heard by the Public Utilities Commission.
The court determined, without explanation, that the municipality was attempting to exercise police power.
Klapp is a particularly enigmatic case.
In spite of prior Supreme Court precedents indicating that municipal power to control the use of public streets was an exercise of the "power of local self-government" (narrowly construed), the court assumed, without explanation, and without indicating that those prior precedents were being overruled, that the municipality's actions were based solely upon the police power.
Perhaps as a means of explaining its cryptic determination, the court indicated that it would not review the extensive issues already discussed in the earlier decisions issued during the extensive appellate history of the case, but that it agreed with the conclusions of the earlier decisions.
The court further stated:
"We agree with the several holdings of the court of appeals, and its last judgment rendered herein, from which this appeal is taken, is affirmed."
Hence it would appear appropriate to review the court of appeals' decision to find a basis for the Supreme Court's unexplained determination.
The problem is that the court of appeals' several holdings have the appearance of contradicting themselves on the issue of whether municipal control over the use of municipal streets by utility companies is an exercise of the police power or a power of local-self government (narrowly construed).