Canyon Public Service Dist. v. Tasa Coal Co.

• Decision Date: 10 April 1973
• Docket Number: No. 13162,13162
• Citation: 156 W.Va. 606,195 S.E.2d 647
• Court: West Virginia Supreme Court
• Parties: CANYON PUBLIC SERVICE DISTRICT, a public corporation v. TASA COAL COMPANY, a corporation.

Page 647

195 S.E.2d 647

156 W.Va. 606

CANYON PUBLIC SERVICE DISTRICT, a public corporation v. TASA COAL COMPANY, a corporation.

No. 13162.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 6, 1973.

Decided April 10, 1973.

Syllabus by the Court

1. In determining whether a statute is mandatory or directory, the intention of the Legislature is controlling and, where such intention is not to make compliance with the statute essential to the validity of the act directed to be done or the procedure to be followed, the statute is merely directory.

2. 'Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.' Point 2 Syllabus, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384.

Haden & Singleton, Julius W. Singleton, Jr., Morgantown, Plowman & Spiegel, John L. Spiegel, Pittsburgh, Pa., for appellant.

Michael Tomasky, Morgantown, for appellee.

SPROUSE, Judge:

In this eminent domain proceeding instituted in the Circuit Court of Monongalia County by Canyon Public Service District, as the plaintiff, against Tasa Coal Company, as the defendant, the defendant seeks an appeal from an order of the circuit court entered on the 11th day of November, 1971, overruling its demurrer and plea in abatement and holding that the plaintiff public service district had the right to condemn the defendant's lands for use in connection with sewer facilities.

The plaintiff Canyon Public Service District is a public corporation, purporting to have been created under the provisions of Chapter 16, Article 13A of the Code of West Virginia, 1931, as amended. The plaintiff filed a petition on August 7, 1971, in the Circuit Court of Monongalia County to condemn certain lands of the defendant Tasa Coal Company for the purpose of constructing a sewer line and sanitary stabilization pond. By an order entered on the same date, the circuit court granted the public service district immediate possession and right of entry, the public service district having deposited $4,600.00 with the circuit court as fair compensation. On September 13, 1971, the date set for the appointment of commissioners, the appellant filed a demurrer to the condemnation petition and on September 27, 1971, filed a special plea in abatement. Attached to the plea in abatement were certified copies of the records of the County Court of Monongalia County relating to the procedures creating the plaintiff public service district. By the demurrer and plea in abatement the defendant contended that the plaintiff was not a legally constituted public service district because (1) less than 100 voters resided and owned property in the district at the time of its creation on June 28, 1960; (2) the petitioner was created solely for the purpose of supplying water; and (3) there was no order fixing a date for hearing as required by statute nor was the hearing set not more than 40 nor less than 20 days from the date of the order required by the statute.

There was no hearing conducted in connection with the demurrer and plea in abatement, and the record before this Court consists only of the petition to condemn and allied orders together with the defendant's demurrer and plea in abatement with the accompanying certified copies of the county court records. The copies of the county court records, which appear to be incomplete, indicate that some time prior to June 28, 1960, an attorney for the unincorporated village of Canyon, Union District, Monongalia County, appeared before the county court, representing that fewer than 100 persons owned real estate in the proposed public service district, there being only 59 families in the village of Canyon, and that for this reason the individuals could not petition for the creation of a public service district. The attorney requested that the county court, on its own motion, order the creation of the public service district under the provisions of the existing law.

The county court was apprised that Tasa Coal Company had for approximately 30 years operated a public water system for the residents of Canyon who were the employees of Tasa Coal Company, but that Tasa had ceased mining operations and informed the citizens it no longer wished to operate the water system for them and would cease to do so no later than July 5, 1960.

Some time prior to June 28, 1960, (the date is not disclosed in the record) the County Court of Monongalia County ordered a hearing before the court to be held on the 28th day of June, 1960, at 10:00 a.m. The order of the county court required publication of notice of such hearing as required by statute but was silent concerning the posting of notice in the appropriate places as required by the statute.

In its order of June 28, 1960, the County Court of Monongalia County created the Canyon Public Service District under the heading on its records 'Canyon Water Service', finding that: (1) 'The desirability and feasibility, based upon all of the said facts and upon said hearing conducted before this County Court of Monongalia County, West Virginia, on this 28th day of June, 1960, * * * is proper'; and (2) 'That the construction or acquisition by purchase, or otherwise, and maintenance, operation, improvement and extension of Public Service properties by such Public Service District will be conducive to the preservation of public health, comfort and convenience of the area embraced within the said Canyon Public Service District'; and (3) 'There being no protest thereto; This Court doth, by order, create such Public Service District, to be known as 'Canyon Public Service District' * * *.'

There is exhibited as part of the record on appeal publishers' certificates showing publication on June 15, 1960, of notice of the hearing to be held on June 28, 1960.

Chapter 16, Article 13A, Section 1, of the Code of West Virginia, 1931, as amended, authorizing the creation of public service districts by the county courts of this State, provides in pertinent part as follows:

'Any territory constituting the whole or any part of one or more counties in the State so situated that the construction or acquisition by purchase or otherwise and the maintenance, operation, improvement and extension of properties Supplying water or sewerage services, or both, within such territory, will be conducive to the preservation of the public health, comfort and convenience of such area, may be constituted a public service district under and in the manner provided by this article. The words 'public service properties,' when used in this article, Shall mean and include any facility used or to be used for or in connection with (1) the diversion, development, pumping, impounding, treatment, storage, distribution or furnishing of water to or for the public for industrial, public, private or other uses (herein sometimes referred to as 'water facilities'), or (2) the collection, treatment, purification or disposal of liquid or solid wastes, sewage or industrial wastes (herein sometimes referred to as 'sewer facilities').' (Italics supplied.)

Chapter 16, Article 13A, Section 2 provides in part as follows:

'The county court of any county may on its own motion by order duly adopted propose the creation of such public service district * * * or any one hundred legal voters resident within and owning real property within the limits * * * may petition for the creation thereof, * * *.

'* * * the county court shall at the same session fix a date of hearing in such county * * * not more than forty days nor less than twenty days from the date of such action. * * * The clerk of the county court * * * shall cause notice of such hearing and the time and place thereof, * * * to be given by publication as a Class I legal advertisement in compliance with the provisions of article three, Chapter fifty-nine * * *. The publication shall be at least ten days prior to such hearing. * * * In addition to the notice required herein to be published, there shall also be posted in at least five conspicuous places in the proposed public service district, a notice containing the same information as is contained in the published notice. The posted notices shall be posted not less than ten days before said hearing.

'All persons residing in or owning or having any interest in property in such proposed public service district shall have an opportunity to be heard for and against its creation. * * *.'

There is obviously no merit to the appellant's argument that the purported creation of the public service district was void because there were not 100 legal voters owning property within the district. The Legislature specifically provided that in such case the county court could create the district on its own motion. Chapter 16, Article 13A, Section 2, Code, 1931, as amended.

This leaves only two questions to be determined in this case. First, was the...