Chesapeake & Potomac Tel. Co. v. City of Morgantown, No. 11000

• Court: Supreme Court of West Virginia
• Writing for the Court: DONLEY
• Citation: 143 W.Va. 800,105 S.E.2d 260
• Parties: The CHESAPEAKE & POTOMAC TELEPHONE COMPANY v. The CITY OF MORGANTOWN et al.
• Docket Number: No. 11000
• Decision Date: 21 October 1958

Page 260

105 S.E.2d 260 143 W.Va. 800 The CHESAPEAKE & POTOMAC TELEPHONE COMPANY
v.
The CITY OF MORGANTOWN et al. No. 11000. Supreme Court of Appeals of West Virginia. Submitted Sept. 16, 1958.
Decided Oct. 21, 1958.

Page 262

Syllabus by the Court.

1. The City of Morgantown does not have the power, express or implied, under its Charter, Acts of the Legislature, [143 W.Va. 801] Regular Session, 1933, Chapter 126, or under any general statute, to impose a 'use fee' upon a public utility telephone company, which is maintaining and operating its facilities upon and under the public streets of the City following the expiration of a previous franchise granted by the City to a predecessor of such telephone company.

2. The nature and characteristics of a license tax, and the limited powers of a municipality with reference to the imposition thereof, are not changed by denominating it a 'use fee'. Unless expressly or by necessary or fair implication authorized to do so by its Charter or by other statute, a municipality has no power to lease the public streets and to collect a rental for their use.

3. The City of Morgantown, by virtue of the police powers granted to it by its Charter and by the general statutes relating to municipal corporations, may lawfully impose license taxes, reasonable in amount,

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upon a public utility telephone company, which is maintaining and operating its facilities upon and under the public streets of the City following the expiration of a previous franchise, where the purpose and effect of such license taxes are to cover the approximate cost of supervision and other similar expenses incurred by the City in connection with the making of excavations, the erection of barriers, and like operations by such public utility.

4. 'A municipal corportaion possesses and can exercise only the following powers: (1) those granted in express words; (2) those necessarily or fairly implied in or incident to the power expressly granted; (3) those essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient--but indispensable. (Dillon on Mun.Corp. (5th ed.), Sec. 237.) (p. 518.)' Hyre v. Brown, 102 W.Va. 505, Point 2 Syllabus [135 S.E. 656, 49 A.L.R. 1230].

5. A municipal Ordinance which is partly valid and partly invalid upon its face, will not be declared totally void upon the ground that the entire Ordinance is a scheme designed to force a public utility into agreeing to a new franchise with [143 W.Va. 802] the city, following the expiration of a previous franchise, where the evidence shows that other non-franchised public utilities are also subject to the provisions of such Ordinance.

6. 'The equal protection provisions of the Federal and State Constitutions do not preclude resorting to classification for purposes of legislation if such classification is reasonable, is founded upon pertinent and real differences, and has as its object a purpose germane to the legislation.' Tweel v. West Virginia Racing Commission, 138 W.Va. 531, Point 4 Syllabus [76 S.E.2d 874].

7. Where part of a municipal Ordinance is invalid that fact does not authorize this Court to declare the other provisions of the Ordinance void, unless they are so connected in subject matter, dependent on each other, or otherwise so connected in meaning that it cannot be presumed that the legislative body would have enacted the one without the other. Where an Ordinance provides that it shall be severable in the event of partial invalidity, the legislative declaration of such intent is entitled to great, but not controlling, weight.

8. It is error for a trial Chancellor to render a final decree by taking into consideration the allegations of an amended bill of complaint without giving the defendant an opportunity to demur thereto or to answer the same. However, if the equity of the plaintiff's case is sufficiently apparent from his other pleadings without resort to such amended bill, the error is harmless and constitutes no ground for reversal of the final decree.

9. Where the valid sections of a municipal Ordinance provide that they do not apply to any public utility company having a current or existing franchise with the city, and at the time of the enactment of such Ordinance a public utility company has an existing franchise previously granted by another municipality which, at the time of the enactment of such Ordinance, has become a part of the first-mentioned city, the Ordinance will be construed as applying to such public utility company, except as to the operation and maintenance [143 W.Va. 803] of its facilities within the area of the second municipality so incorporated into the first municipality.

10. An injunction may be awarded by a court, in a case not ready for hearing, if the court is satisfied by affidavit or otherwise of the plaintiff's equity. Code, Chapter 53, Article 5, Section 8.

11. If a municipal corporation acts ultra vires by taxing property not subject to taxation, or taxes property which it may tax, beyond the limit fixed by organic law conferring the power to tax, injunction is a proper remedy to test the validity of an Ordinance which attempts to impose such illegal tax and to restrain the enforcement thereof.

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H. Wm. Largent, George R. Farmer, Morgantown, for appellant.

Charles G. Baker, Charles S. Armistead, Morgantown, John G. Fox, Charleston, for appellees.

DONLEY, Judge.

This is a suit by The Chesapeake and Potomac Telephone Company of West Virginia, a corporation, against the City of Morgantown, Elmer W. Prince, City Manager, James A. Ashburn, City Clerk, and John W. Lewis, Acting, Chief of Police of the City of Morgantown, to enjoin the enforcement of an Ordinance, adopted by the City on April 9, 1957, as amended on July 9, 1957.

A brief summary of the facts leading up to the adoption of the Ordinance is necessary in order to understand the contentions made by the parties.

Central District Telephone Company, the predecessor of the plaintiff, was granted a franchise by the City of [143 W.Va. 804] Morgantown on July 3, 1916, for a period of forty years. Following the expiration of this franchise, the parties were unable to agree upon the terms of a new one. The Ordinance in question, adopted on April 9, 1957, is entitled:

'AN ORDINANCE REGULATING AND CONTROLLING THE USE OF THE STREETS, ALLEYS, HIGHWAYS, AVENUES, SIDEWALKS AND OTHER PUBLIC GROUNDS OF THE CITY OF MORGANTOWN, WEST VIRGINIA, PRESCRIBING THE MANNER OF PLACING, CONSTRUCTING, MAINTAINING, REPAIRING AND REMOVING TOWERS, POLES, WIRES, SUPPORTS, CABLES, BRACKETS, MASTS, PIPES, MAINS, DUCTS, CONDUITS, MANHOLES OR OTHER FIXTURES OR EQUIPMENT IN, ON, UNDER OR OVER THE SAME; PRESCRIBING THE MANNER OF EXCAVATING IN SAID STREETS, ALLEYS, HIGHWAYS, AVENUES, SIDEWALKS AND OTHER PUBLIC GROUNDS, REGULATING AND CONTROLLING ALL FIXTURES AND EQUIPMENT PLACED IN, UNDER, ON OR OVER THE SAME; PROVIDING LICENSES AND LICENSE FEES, PERMITS AND PERMIT FEES THEREFOR; PROVIDING FOR THE SEVERABILITY OF THE PROVISIONS OF THIS ORDINANCE: AND THE PENALTIES FOR THE VIOLATION THEREOF.'

The pertinent parts of this Ordinance, which are now the subject of controversy between the parties, are Sections 1, 2, and 4, and Section 3, as amended. Sections 1, 2 and 4 provide as follows:

'Section 1. No public street, alley, highway, sidewalk, public way or public ground within the City of Morgantown, West Virginia, shall be dug into, opened, or excavated, or the surface thereof in any manner broken or injured for the benefit of any person, firm or corporation other than the City itself excepting as herein provided, and excepting as provided in the sewer ordinance of said City relating to abutting property owners. Any person, firm or corporation desiring to have any opening or excavation made in the surface of [143 W.Va. 805] a street, or use the streets and alleys for its benefit, shall make an application in writing to the City Manager therefor. Such application shall give the name and address of the applicant, the location and purpose of the opening or excavation and the time when such opening or excavation is to be made. All such openings and excavations shall be made by The City of Morgantown, its agents, employees or contractors. Upon approval thereof, the City Manager shall issue a work order or permit, showing the work which is to be accomplished by the City for the applicant with the estimated cost thereof and such other information as the City Manager may deem pertinent. In any proper case, the City Manager may require the applicant by bond or money deposit to insure the City payment of the work before the same is accomplished. Where any such opening, or excavation, or

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other disturbance, is upon a paved street the applicant shall also pay to the City a service fee to cover the cost of any permanent injury to the surface of such street. The cost of any opening, excavation or other disturbance in any public street, alley, public way or sidewalk and any such service fee shall be determined as follows:

'For each square foot of brick surface opened or injured $1.50;

'For each square foot of cement paved surface 80cents;

'For each square foot of concrete base with asphalt or similar surface $1.20;

'For each square foot of concrete base with brick surface $2.00;

'For each square foot of other paving surface, such amount as the City Manager may deem proper, but not less than 50cents nor more than $1.50;

'For each cubic yard of earth excavated for the first 5 feet in depth $4.00;

'For each cubic yard of earth excavated for all excavation below 5 feet in depth $6.00 per cubic yard;

'For each cubic yard of back-fill with earth where the excavation does not exceed 5 feet in depth $2.00 per cubic yard;

[143 W.Va. 806] 'For each cubic yard of back-fill with earth where the excavation to be back-filled is below 5 feet in depth $3.00 per cubic yard;

'Where either the excavation and/or the...