State ex rel. Appalachian Power Co. v. Gainer

• Decision Date: 13 July 1965
• Docket Number: Nos. 12446,12461,s. 12446
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. APPALACHIAN POWER COMPANY v. Denzil L. GAINER, Auditor, etc. STATE ex rel. the CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF WEST VIRGINIA v. Denzil L. GAINER, Auditor, etc.

Page 351

143 S.E.2d 351

149 W.Va. 740

STATE ex rel. APPALACHIAN POWER COMPANY v. Denzil L. GAINER, Auditor, etc.

STATE ex rel. the CHESAPEAKE AND POTOMAC TELEPHONE COMPANY

OF WEST VIRGINIA v. Denzil L. GAINER, Auditor, etc.

Nos. 12446, 12461.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1965.

Decided July 13, 1965.

Syllabus by the Court

1. In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.

2. The legislative declaration in Code, 1931, 17-4-17-b, as amended, that the cost of relocation of public utility facilities in connection with any federal-aid interstate highway project is to be deemed a cost of highway construction, is entitled to great weight by this Court.

3. While, at common law, a public utility could be required by public authorities to remove, at its own expense, any portion of its facilities from a public street, highway, or from the right of way of a public street or highway, such common law power in public authorities does not constitutionally inhibit the legislature, in a proper exercise of the police power, from authorizing reimbursement to be paid to a public utility from public funds for proper and reasonable cost of relocation of such facilities when such relocation is rendered necessary, in the public interest, in the construction, reconstruction, repair or improvement of a public highway.

4. A right of way for a public street or highway embraces every reasonable method of travel, communication of intelligence or use of such right of way in the public interest, including proper use by public utilities, on, above or beneath the surface, within reasonable limits and subject to proper public regulation.

5. The police power is the power of the state, inherent in every sovereignty, to enact laws, within constitutional limits, to promote the welfare of its citizens. The police power is difficult to define precisely, because it is extensive, elastic and constantly evolving to meet new and increasing demands for its exercise for the benefit of society and to promote the general welfare. It embraces the power of the state to preserve and promote the general welfare and it is concerned with whatever affects the peace, security, safety, morals, health and general welfare of the community. It cannot be circumscribed within narrow limits nor can it be confined to precedents resting alone on conditions of the past. As society becomes increasingly complex and as advancements are made, the police power must of necessity evolve, develop and expand, in the public interest, to meet such conditions.

6. When a portion of the facilities of a public utility are properly and lawfully located on a public street, highway or right of way, and it becomes necessary to relocate such facilities in order to make possible the construction, reconstruction, relocation or repair of a public highway, such relocation is in the public interest and for a public purpose and the legislature, by proper legislative enactment, may lawfully and constitutionally provide for the reimbursement of such utility from public funds for the proper and reasonable cost of such relocation.

7. In due recognition of fundamental principles relating to the separation of powers among the legislative, executive and judicial branches of government, courts recognize the power of the legislature to make reasonable classifications for legislative purposes. Courts are bound by a presumption that legislative classifications are reasonable, proper and based on a sound exercise of the legislative prerogative. If a statute enacted by the legislature applies throughout the state and to all persons, entities or things within a class, and if such classification is not arbitrary or unreasonable, the statute must be regarded as general rather than special. In making classifications for legislative purposes, a wide range of discretion must be conceded by the courts to the legislature. In any case of doubt, courts must favor a construction of a statute which will result in a statute being regarded as general rather than special. A statute must be regarded as general rather than special when it operates uniformly on all persons, entities or things of a class. A law which operates uniformly upon all persons, entities or things as a class is a general law; while a law which operates differently as to particular persons, entities or things within a class is a special law.

8. Chapter 161, Acts of the Legislature, Regular Session, 1963, which amended Article 4, Chapter 17 of Code, 1931, as amended, by adding thereto a new provision designated as Section 17-b, is not violative of Section 52 of Article VI; Section 39 of Article VI; or of Section 6 of Article X of the Constitution of West Virginia.

Robert E. Magnuson, Ernest K. James, Charleston, for relator Appalachian Power Co.

A. Thomas Breit, Jackson, Kelly, Holt & O'Farrell, Homer A. Holt, Charleston, for relator C. & P. Telephone Co. of W. Va.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Philip J. Graziani, Asst. Attys. Gen., Charleston, for respondent.

Steptoe & Johnson, David C. Clovis, Clarksburg, for Quiet Dell Public Serv. Dist. & Sun Valley Public Serv. Dist., amici curiae.

Furbee & Hardesty, Russell L. Furbee, Fairmont, for Monongahela Power Co., amici curiae.

CALHOUN, Judge.

This case involves two proceedings in mandamus which were instituted in this Court pursuant to its original jurisdiction in such cases. They involve similar factual situations and similar legal questions and consequently, by consent of all parties, they have been consolidated for purposes of argument and final decision by this Court.

The relators in the two mandamus proceedings seek to have the Court to require the respondent, Honorable Denzil L. Gainer, in his official capacity as Auditor of the State of West Virginia, to honor requisitions of the state road commissioner and accordingly to draw state warrants for payment of expenses incurred by the relators, respectively, in moving portions of their public utility facilities in connection with the construction of certain federal-aid interstate highways. The basic question presented for decision is the constitutionality of Chapter 161, Acts of the Legislature, Regular Session, 1963, which authorizes payment by the state of items of expense such as those incurred by the two relators in this case.

The Chesapeake and Potomac Telephone Company of West Virginia, a corporation, is a public utility engaged in the transmission of messages by telephone. The state road commission directed that company to relocate portions of its facilities, which were located within an existing public highway right of way, in order to facilitate the construction of a federal-aid interstate highway known as Interstate No. 77. The telephone company entered into agreements with the state road commission by which the commission agreed to reimburse the telephone company for costs incurred by it in relocating its facilities, unless to do so would be held by this Court to be unconstitutional.

Statements of costs of relocation of facilities were delivered by the telephone company to the state road commission. They were audited and approved by the auditing department of the commission. The state road commissioner drew his requisition upon the respondent state auditor for issuance by him of a warrant for the payment to the telephone company of the amount of the statements, as audited and approved, in the aggregate sum of $39,301.87. The respondent state auditor refused to honor the requisition of the state road commissioner, and, in doing so, the respondent suggested possible grounds of unconstitutionality of the act of the legislature which authorized payment of such items. In such circumstances, The Chesapeake and Potomac Telephone Company of West Virginia instituted the proceeding in mandamus in this Court.

The case as it relates to Appalachian Power Company, an electric public utility corporation, arose in a similar manner in all respects except that the claim in the mandamus proceeding instituted by it is for the sum of $3,111.00.

An answer and a demurrer were filed in behalf of the respondent state auditor to each of the two mandamus petitions. No substantial dispute of facts is presented by the pleadings. The demurrer raises questions of constitutionality which will be referred to more specifically hereafter in this opinion.

The Congress of the United States, in enacting the Federal-Aid Highway Act of 1956, authorized the use of federal highway funds for payment of costs of the relocation of public utility facilities necessitated by the construction of federal-aid highways. The pertinent portions of the federal act, as amended, are as follows: '(a) When a State shall pay for the cost of relocation of utility facilities necessitated by the construction of a project on the Federal-aid primary or secondary systems or on the Interstate System, including extensions thereof within urban areas, Federal funds may be used to reimburse the State for such cost in the same proportion as Federal funds are expended on the project. Federal funds shall not be used to reimburse the State under this section when the payment to the utility violates the law of the State or violates a legal contract...