Appalachian Power Co. v. Public Service Com'n of W.Va.

• Decision Date: 28 May 1982
• Docket Number: No. 15423,15423
• Citation: 296 S.E.2d 887,170 W.Va. 757
• Court: West Virginia Supreme Court
• Parties: APPALACHIAN POWER COMPANY, a corp. v. PUBLIC SERVICE COMMISSION OF W.VA.

Page 887

296 S.E.2d 887

170 W.Va. 757

APPALACHIAN POWER COMPANY, a corp. v. PUBLIC SERVICE COMMISSION OF W.VA.

No. 15423.

Supreme Court of Appeals of West Virginia.

May 28, 1982.

Syllabus by the Court

1. The Legislature may create an administrative agency and give it quasi-judicial powers to conduct hearings and make findings of fact without violating the separation of powers doctrine.

2. Where there is a direct and fundamental encroachment by one branch of government into the traditional powers of another branch of government, this violates the separation of powers doctrine contained in Section 1 of Article V of the West Virginia Constitution.

3. The broad delegation of contempt power as given by W.Va.Code, 24-4-5, to the Public Service Commission is prohibited by the separation of powers provision in our State Constitution.

Charles McElwee, Love, Wise, Robinson & Woodroe, Charleston, for petitioner.

William H. Roberts, Legal Div., Public Service Com'n, Charleston, for respondent.

David B. Frost, C & P Telephone Co., Charleston, amicus curiae.

MILLER, Chief Justice:

This is an appeal from a $5,000 contempt fine imposed by the Public Service Commission. The initial proceeding arose, when the Public Service Commission (Commission) served a written notice upon Appalachian Power Company (Appalachian) stating that it had violated the Commission's Rule 4.08(1)(a) relating to termination of utility services to residential customers during the winter months. Appalachian allegedly had wrongfully terminated electrical service to a John Barnette. In its notice the Commission cited its powers contained in W.Va.Code, 24-4-3 ¹ and 24-4-5. ² A hearing date was set in the notice.

After an evidentiary hearing was completed, the Commission issued a rather detailed order stating its findings of facts and rulings on the legal points argued by the parties. From this order it appears that the Commission based its formal action only on its contempt power contained in W.Va.Code, 24-4-5, in assessing the $5,000 fine against Appalachian. The Commission concluded that its contempt power did not violate the separation of powers doctrine nor our general case law in the contempt field. ³

Because we believe that the separation of powers point is controlling, we resolve the case on this issue.

The doctrine of separation of powers is expressed in Section 1 of Article V of the West Virginia Constitution. ⁴ There is no counterpart in the United States Constitution. Consequently, the federal doctrine of separation of powers has developed not from one single provision in the United States Constitution, but as a result of the constitutional language separating and vesting legislative, executive and judicial power in the three departments of government. National Mutual Insurance Co. v. Tidewater Transfer Co. Inc., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949).

The doctrine of separation of powers is not without its complexity. ⁵ We need not however explore all of the ramifications of this doctrine since the narrow question before us is whether W.Va.Code, 24-4-5, which confers general power of contempt to the Commission violates the doctrine. We believe it does.

We do not quarrel with the proposition advanced by the Commission that in the course of its administrative work it exercises a quasi-judicial power, a point that was recently made in Appalachian Power Co. v. Public Service Commission, 163 W.Va. 839, 253 S.E.2d 377, 384-385 (1979). We recognize that the Legislature may create an administrative agency and give it quasi-judicial powers to conduct hearings and make findings of fact without violating the separation of powers doctrine. As early as Wheeling Bridge T. Ry. Co. v. Paull, 39 W.Va. 142, 19 S.E. 551 (1894), we recognized that from a practical standpoint, it was often impossible to maintain a complete separation between the three branches of government. One of the best expressions of this thought is found in Chapman v. Huntington W.Va. Housing Authority, 121 W.Va. 319, 336, 3 S.E.2d 502, 510 (1939):

"The separation-of-power rule, as expressed in the West Virginia Constitution, however, is not adamant. From time to time, courts have construed it as each case arises. They, Judge Hatcher suggests in the Hodges case [110 W.Va. 649, 159 S.E. 836], 'have not drawn "abstract analytical lines of separation" (37 Harv.L.Rev., 1014) between the departments, and that there is some overlapping of judicial and administrative duties.' The same is true of the legislative delegation of powers to administrative bodies. Necessarily, in order to make government workable and economical, it must lend itself to practical considerations. Thus we find in practice the three departments of our government, both state and federal, are mutually dependent upon, and support, each other. Wheeling Bridge, etc., [T.] R[y]. Co. v. Paull, supra, 144 of 39 W.Va. In State ex rel Hall v. County Court of Monongalia County, 82 W.Va. 564, 572, 96 S.E. 966, 969, Judge Lynch said: 'No one department can fully and completely fulfill or discharge the duties allotted to it without at least in part exercising some function belonging to one or both of the others.' "

Thus, we have recognized the need for some flexibility in interpreting the separation of powers doctrine in order to meet the realities of modern day government and particularly the proliferation of administrative agencies. We have not however hesitated to utilize the doctrine where we felt there was a direct and fundamental encroachment by one branch of government into the traditional powers of another branch of government. E.g., State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981); State ex rel. State Building Commission v. Bailey, 151 W.Va. 79, 150 S.E.2d 449 (1966); West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959); State v. Huber, 129 W.Va. 198, 40 S.E.2d 11, 168 A.L.R. 808 (1946). In West Virginia State Bar, supra, Judge Haymond writing for an unanimous court postulated that the separation of powers doctrine would preclude the Legislature from delegating to an administrative agency the right to determine who could practice law before the agency. He stated, "If the statute attempted to authorize the commissioner to promulgate a rule of that character such provision of the statute would be void as a legislative encroachment upon the inherent power of the judicial department of the government." 144 W.Va. at 535, 109 S.E.2d at 439.

We have not had an occasion to specifically determine whether a direct statutory grant by the Legislature of contempt power to an administrative agency violates the separation of powers doctrine and other courts are not entirely harmonious on this point. The Commission rejected Appalachian's argument that Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1037 (1894) was controlling. In Brimson the Supreme Court indicated that a delegation of contempt power could not be made to an administrative agency. While it is true that the statement in Brimson was only dictum, ⁶ nevertheless, on the federal level it has been rather uniformly followed. E.g., City of Chicago v. Federal Power Commission, 385 F.2d 629 (D.C.Cir.1967) cert. denied, Public Service Commission of Wisconsin v. Federal Power Commission, 390 U.S. 945, 88 S.Ct. 1028, 19 L.Ed.2d 1133; Shasta Minerals & Chemical Co. v. SEC, 328 F.2d 285, 286 (10th Cir.1964). ⁷ State courts which have addressed the problem are not entirely in accord. In the absence of any constitutional provision giving contempt power to an agency, some courts which have considered the question in the separation of powers context have concluded that a direct contempt power cannot be delegated to an administrative agency. E.g., People v. Swena, 88 Colo. 337, 296 P. 271 (1931); Langenberg v. Decker, 131 Ind. 471, 31 N.E. 190 (1892); Roberts v. Hackney, 109 Ky. 265, 58 S.W. 810 (1900); Wright v. Plaza Ford, 164 N.J.Super. 203, 395 A.2d 1259 (1978); Haas v. Jennings, 120 Ohio St. 370, 166 N.E. 357 (1929). Others have concluded that the contempt power is delegable. In re Clark, 65 Conn. 17, 31 A. 522 (1894); Dogge v. State, 21 Neb. 272, 31 N.W. 929 (1887); Vogel v. Corporation Comm'n, 190 Okl. 156, 121 P.2d 586 (1942); State ex rel. Morton v. Meyers, 171 La. 313, 131 So. 31 (1930). One of the best discussions of this point is contained in Wright, supra at 1206, where the Court utilized this practical statement from Albertsworth, Administrative Contempt Powers: A Problem in Technique, 25 A.B.A.J. 954 (1939):

"The petty abuses which might result from an incompetent personnel found in the lower officials of government would clearly militate against blanket conference of such wide powers of contempt over the affairs of persons and corporations subject to the veritable host of our present-day administrative agencies. [At 957-58]."

We do not mean to suggest that all administrative personnel are incompetent. It is more a question of their lack of legal training coupled with the broad range of subjects presented to them that preclude the delegation of a general contempt power. Certainly, Wright, supra, illustrates one aspect of the problem. There an attorney representing an injured claimant was cited for three instances of contempt by a workmen's compensation hearing examiner when the attorney persisted in referring to other unreported compensation cases to justify his fee in the present case. He was fined $50.00 and one-day in jail for each of the three contempts.

The broad power of contempt as conferred by W.Va.Code, 24-4-5, which is "the same power to punish therefor as is now conferred in the circuit court," would encompass the failure to respond to subpoenas ⁸ as well as violations of the Commission's rules and orders, some of which may be subject to challenges as being void. Furthermore, as Wright, supra, indicates, parties and their attorneys appearing before the agency...