Chesapeake & Potomac Tel. Co. of W. Va. v. City of Morgantown, 11017

• Citation: 107 S.E.2d 489,144 W.Va. 149
• Decision Date: 03 March 1959
• Docket Number: No. 11017,11017
• Court: Supreme Court of West Virginia
• Parties: THE CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF WEST VIRGINIA v. CITY OF MORGANTOWN.

Page 489

107 S.E.2d 489

144 W.Va. 149

THE CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF WEST VIRGINIA v. CITY OF MORGANTOWN.

No. 11017.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 1959.

Decided March 3, 1959.

Syllabus by the Court.

1. 'A municipal corporation is a creature of the State, and can only perform such functions of government as may have been conferred by the constitution, or delegated to it by the law-making authority of the State. It has no inherent powers, and only such implied powers as are necessary to carry into effect those expressly granted.' Pt. 1 Syl., Brackman's, Inc. v. City of Huntington, 126 W.Va. 21 .

2. 'A municipal corporation possesses no inherent police power. It has only such regulatory authority as has been expressly or impliedly delegated to it by the Legislature.' Pt. 1 Syl., State ex rel. Kelley v. City of Grafton, 87 W.Va. 191 .

3. 'The plenary power and authority given to municipalities by their charters and by general law to lay out, pave and keep in good repair the streets free and clean for the security and convenience of the public and to prevent damage thereto by public service corporations licensed to use them, has not been impaired by the public service commission act; nor has the public service commission jurisdiction to usurp or interfere with the police power of a municipality in the control of its streets.' Pt. 3 Syl., City of Bluefield v. Public Service Commission, 94 W.Va. 334 .

4. 'Statutes relating to the same subject matter must be read and applied together, whether passed at the same or different times.' Pt. 1 Syl., State ex rel., Schroath v. Condry, 139 W.Va. 827 .

5. 'When a municipal ordinance is opposed to the policy of the state in relation to the subject matter thereof and in conflict with the statute of the state in relation thereto, the ordinance is void to the extent of its conflict with the statute and should not be enforced.' Pt. 1 Syl., State ex rel. Wells v. City of Charleston, 92 W.Va. 611 .

6. A telephone company which has erected its poles, wires and other facilities in, upon and over the streets of a municipality, by virtue of a municipal ordinance granting permission to do so for a period of forty years, and which is subject to regulation by the Public Service Commission under the provisions of Code, Chapter 24, may not cease its telephone service to the public in such municipality without the consent and approval of the Public Service Commission, even though the forty-year period of such municipal consent by ordinance has expired and has not been renewed. The municipality, under such circumstances, may not compel such telephone company, without the consent and approval of the Public Service Commission, to remove its facilities from the streets of the municipality.

7. 'The rights, status, and legal relations of parties to a proceeding under the Uniform Declaratory Judgments Act depend upon facts existing at the time the proceeding is commenced. Future and contingent events will not be considered.' Pt. 2 Syl., [Town of] South Charleston v. Board of Education, 132 W.Va. 77 .

H. William Largent, Geo. R. Farmer, Morgantown, for appellant.

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

CALHOUN, Judge.

In this declaratory judgment proceeding instituted in the Circuit Court of Monongalia County by The Chesapeake and Potomac Telephone Company of West Virginia against the City of Morgantown, an appeal was granted by this Court on October 20, 1958, at the instance of the city, from a final decree entered therein by the circuit court on June 25, 1958.

The purpose of the proceeding is to have a judicial declaration of the rights of the respective parties in connection with the use by The Chesapeake and Potomac Telephone Company of West Virginia, (hereinafter for purposes of convenience sometimes referred to as the 'telephone company'), of the streets of the City of Morgantown (hereinafter for purposes of convenience sometimes referred to as 'the city'), for its poles, wires and other facilities, and particularly a declaration of the rights of the respective parties in relation to the city's resolution of June 25, 1957, which seeks to require the telephone company to remove all its facilities from the streets of the city.

Prior to the taking of testimony, by an order entered on February 15, 1958, the circuit court defined the issue in the following language:

'Thereupon, the Court, on its own motion, doth determine that the sole issue raised by the pleadings heretofore filed herein, and to be determined upon a hearing upon the petition, the amended petition and the answer, is the right of the plaintiff to continue to use and occupy the streets, alleys, public ways and public property of The City of Morgantown for the purpose of constructing, maintaining, extending and replacing its poles, wires, conduits and other facilities located therein, thereunder and thereover in the City of Morgantown, from and after July 2, 1956, and also from and after one (1) year after June 25, 1957, that being the time in which the petitioner was notified by the defendant City to remove said facilities, as set forth in the notice exhibited with the amended petition; however, that the area of the defendant City comprising the Sixth Ward thereof is not involved in the issues herein determined.'

To the action of the court 'in so limiting the issues', the telephone company objected and excepted, but the defendant below made no objection thereto. By the final decree of June 25, 1958, from which this appeal is prosecuted the court held:

'* * * That the plaintiff had and has the right to continue to use and occupy the streets, alleys, public ways and public property of the defendant, The City of Morgantown, for the purpose of constructing, maintaining, extending and replacing its poles, wires, conduits and other facilities located therein, thereunder and thereover in the City of Morgantown from and after July 2, 1956, and also from and after June 25, 1958, the latter being the date on which plaintiff was notified by the defendant City to remove its facilities from said public property; subject, however, to the right in said City of Morgantown, to reasonably regulate the use of its streets, alleys and other public grounds by the plaintiff and to require the payment of reasonable, non-discriminatory fees by the plaintiff to cover the cost of such regulation.'

After its judgment, as stated above, was orally announced from the bench, the court overruled the motion of the city to clarify its rulings in the following particulars:

'1. Whether said rights are to be enjoyed by the Plaintiff in perpetuity and without limit as to time, or shall be subject to termination in a lesser period of time.

'2. Whether Plaintiff's rights so declared are property rights and as such are transferrable to a vendee or successor of Plaintiff.

'3. Whether violation by the Plaintiff of reasonable regulations imposed by the Defendant City shall terminate such rights of the Plaintiff as herein declared.'

In order to discuss the issues presented, it is necessary to state in some detail the facts which give rise to the controversy. The telephone company commenced its operations within the city by virtue of consent granted to it by a municipal ordinance, dated July 3, 1916. This ordinance, which is referred to in the record as a 'franchise', gave to the predecessor of The Chesapeake and Potomac Telephone Company and its successors and assigns permission for a period of forty years 'from the date of the passage hereof, to construct, maintain and operate its posts, poles, cables, wires and all other necessary overhead apparatus on, over and along; and its conduits, ducts, mains, pipes, cables, wires, manholes, terminal and distributing poles and all other necessary underground appliances, on, in, under and through the streets, alleys and highways within the limits of the City of Morgantown, in the County of Monongalia and State of West Virginia; and to use the property of other companies and to permit other companies to use its property, under such reasonable and safe rules and regulations as may be agreed upon by such companies, or said City may reasonably require.' The ordinance then proceeded to provide for the manner in which telephone poles and other facilities should be placed on the streets and matters of a related nature. In Section 5 of the ordinance it was provided that the telephone company should provide for the city, 'free of charge', ten individual line telephones.

The forty-year franchise expired on July 2, 1956. The Town of Sabraton on March 6, 1939, granted to the telephone company a similar permission to use its streets for a period of fifty years. On July 1, 1949, the Town of Sabraton became a part of the City of Morgantown. Hence the telephone company has a franchise permit which is still in effect in relation to that portion of the City of Morgantown.

Prior to the date of the expiration of the forty-year permit or franchise, the parties commenced negotiations for renewal thereof. Such negotiations continued over a period of months but finally broke down because of an inability of the parties to agree upon the terms thereof. This inability to agree upon a new franchise related: (1) To the term thereof, and (2) the amount of 'a franchise fee'.

In this background, the city, on April 9, 1957, enacted an ordinance requiring the telephone company to obtain annual permits for use of the streets and to pay therefor certain annual fees. On January 9, 1958, the Circuit Court of Monongalia County permanently enjoined the enforcement of such ordinance. This resulted in an appeal to this Court. Chesapeake & Potomac Tel. Co. v. City of Morgantown, W.Va., 105 S.E.2d 260.

On June 25, 1957, the City of Morgantown, acting through its common council, passed a resolution which recited the expiration of the...