Charleston Apartments Corp. v. Appalachian Elec. Power Co.
| Decision Date | 25 May 1937 |
| Docket Number | 8472. |
| Citation | 192 S.E. 294,118 W.Va. 694 |
| Parties | CHARLESTON APARTMENTS CORPORATION v. APPALACHIAN ELECTRIC POWER CO. |
| Court | West Virginia Supreme Court |
Submitted February 23, 1937.
Rehearing Denied July 30, 1937.
Syllabus by the Court.
1. "Where ratepayers allege that they have been required by a utility to pay charges in excess of the legal rate in effect at the time such charges were made, and seek to recover the excess, there is presented a judicial question determinable by the courts, and in no wise contingent upon a preliminary inquiry by the public service commission as to whether the rate charged was in excess of a reasonable rate." Syl. 1, Natural Gas Company v. Sommerville Judge, et al., 113 W.Va. 100, 166 S.E. 852.
2. A bill of complaint, based upon a legal demand, and containing no ground for equity jurisdiction except that of discovery must aver that the discovery is indispensable for lack of other evidence; otherwise a court of equity is without jurisdiction.
3. Lack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion.
Appeal from Circuit Court, Kanawha County.
Suit by the Charleston Apartments Corporation against the Appalachian Electric Power Company. From the decree, the plaintiff appeals.
Reversed and remanded, with directions.
Hyman C. Cohen and Owen, Silverstein & Davis, all of Charleston for appellant.
Campbell, McClintic & James and Charles C. Wise, all of Charleston, for appellee.
This is a suit in equity brought by Charleston Apartments Corporation, a corporation, against the Appalachian Electric Power Company, a corporation, the primary purpose of which is to obtain a decretal judgment for the excess over an alleged lawful rate paid over protest for electric energy. The plaintiff complains of the action of the chancellor in overruling its demurrer to the defendant's plea in abatement, challenging jurisdiction, and dismissing the cause.
The plaintiff is a corporation, having its principal office in the City of Charleston, and engaged in the construction and operation of residential apartment buildings in said city. The defendant Appalachian Electric Power Company, is a public utility company, furnishing electric service to the public pursuant to tariffs, rules, regulations, terms, and conditions promulgated and approved by the Public Service Commission of West Virginia.
The pertinent allegations of plaintiff's bill of complaint are as follows: During the years 1930 and 1931, the plaintiff constructed three apartment houses in the City of Charleston, to wit, the La Salle (March, 1930), the Argonne (October, 1930), and Aracoma (Septem ber, 1931), and wired the several buildings as to require the use of but one electric meter in each building, and charged to the tenant a definite rental for each of the apartments housed in said buildings, such charge including the unrestricted and unlimited use of electric energy; after the completion of the La Salle, a representative of the plaintiff company called at the office of the defendant company and made known plaintiff's desire to purchase electric energy at the cheapest possible available rate, and thereupon was handed a printed form upon which said representative inserted BR6B (Full Residential Electric Service), and signed the same and left; the charge of the first month being greater than said representative had anticipated, he again visited defendant's office, and found that a line had been drawn through BR6B and "CL6B" (Commercial Lighting) inserted in its stead; that although plaintiff protested service under "CL6B," it had to pay thereunder in order to serve the patrons of its apartment building; that the plaintiff has been obliged to pay to the defendant a sum of money estimated at somewhat in excess of $6,000 over and above the amount defendant was rightfully entitled to collect; and that the plaintiff is unable to compute the exact amount it is entitled to recover back. The bill of complaint, in addition to the relief prayed for, seeks a discovery as to the sums of money the defendant has illegally collected by requiring the plaintiff to accept service under the tariff CL6B.
To the original bill of complaint, the defendant filed two pleas: One in bar, and the other a plea in abatement to the effect that the Public Service Commission and not the circuit court had jurisdiction of the matters in controversy. The plea in bar was withdrawn. Thereafter, the bill of complaint was amended by including therein a new tariff of March 1, 1935, which provided: "Available for full domestic electric service through one meter to individual residential customers, including rural domestic customers engaged principally in agricultural pursuits." To the bill of complaint, as amended, the defendant re newed its plea in abatement, and the plaintiff renewed its demurrer to said plea in abatement. The trial court then overruled plaintiff's demurrer to the defendant's plea in abatement and dismissed the bill of complaint. This action of the trial court, as shown from its opinion, was based on the ground that the matters in controversy were administrative, and not judicial, and resort should have been had to the Public Service Commission of West Virginia.
Besides the prayer for discovery, the bill of complaint, as amended has a twofold purpose: The matter of plaintiff's proper classification after March 1, 1935, under the tariff known as BR6B; and a decretal judgment for the amount charged in excess of the rate prescribed in said tariff. The first branch of this...
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