City Of Bluefield v. Pub. Serv. Comm'n El Als.

• Decision Date: 19 June 1923
• Docket Number: No. 4910.,4910.
• Court: West Virginia Supreme Court
• Parties: City of Bluefield v. Public Service Commission el als.

94 W.Va. 334

City of Bluefield

v.Public Service Commission el als.

No. 4910.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1923.

Decided June 19, 1923.

1. Waters and Water Courses Public Service Commission Held Without Jurisdiction to Require Water Company Operating Under a Municipal Franchise to Relocate its Water Pipes. Chapter 15-0 of the Code, which creates the public service commission and defines its powers and duties, does not give the commission jurisdiction to require a water company furnishing to the public water under a municipal franchise under which it has laid its mains and service pipes in the streets, to relocate its pipes so laid in order to avoid electrolysis of its pipes claimed to be caused by the subsequent operation of an electric street car line over the streets, in order to prevent damage to the streets from frequent repair of its pipe lines, (p. 335).

2. Electricity Waters and Water Courses Public Service Commission Without Jurisdiction to Compel Water and Electric Railway Company Using Street Under Franchise to Improve Respective Plants or so Operate as to Prevent Damage to Streets.

The public service commission does not have jurisdiction on the petition of a city, to compel a water company and an electric railway company using the streets under franchises from the city for their respective purposes to order them to improve their respective plants or so operate them as to prevent damage to the streets; there being no question raised as to the adequacy of the service or reasonableness or justness of the rates or tolls charged, (p. 339).

3. Municipal Corporations Public Service Commission has no Jurisdiction to Usurp or Interfere With Police Power of Municipality in Control of Streets.

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. (p. 343).

Appeal from Circuit Court, Mercer County.

Proceeding by the City of Bluefield against the Bluefield Waterworks & Improvement Company and another, before the Public Service Commission. Prom an order of the Commission dismissing the proceeding. The City appeals.

Order of suspension refused.

Russell S. Ritz, for petitioner.

Sanders, Crockett & Fox, for respondents.

Lively, Judge:

Upon consideration of the petition or complaint of the city of Bluefield, the separate demurrers and separate answers of the Bluefield Water Works and Improvement Company and the Princeton Power Company, and the evidence, the public service commission came to the conclusion that it had no jurisdiction to hear and determine the matters set up and alleged in the complaint, and ordered that the same be dismissed and the case stricken from its docket. From this order the city of Bluefield has taken this appeal.

The only question here is whether the public service commission had jurisdiction to try and determine the matters set up in the petition or complaint and developed by the evidence. If the commission had jurisdiction to hear and determine the complaint its order would be set aside by this court and the case remanded for decision upon its merits. If the matter falls within the jurisdiction of the commission this court cannot pass upon the controversy except upon an appeal from the order of the commission after it has decided the case upon its merits. Kelly Axe Mfg. Co. v. United Fuel Gas Co., 87 W. Va. 368: State ex rel Croy v. Bluefield Water Works & Imp. Co. 86 W. Va. 260; 103 S. E. 340. The petition of the city of Bluefield setting out its complaint filed with the commission is against the Bluefield AVater Works and Improvement Company and the Princeton Power Company, which it alleges are public service utilities operating under franchises from the city and subject to the provisions of chapter 15-0 of the Code (the public service commission act). The substance of the complaint is that the city is about to permanently pave its streets with modern and expensive pavement; that heretofore the water works company has been cutting numerous holes in the pavement to repair leaks in its water pipes thereunder, more especially through the pavement on Bluefield avenue, one of the principal streets in the town, over which extensive traffic is carried; that, if the water company is permitted to continue to cut through the pavement for that purpose the permanent paving which the city contemplates putting down will be greatly impaired or permanently destroyed; that the cause for cutting these holes can be removed; that the water company claims a large number of its leaks (especially on Bluefield avenue) are caused by an electric current which reaches its pipes from the operations of the power company which operates its electric trolley line over the avenue and the other streets of the city causing electrolysis of its pipes, and that by a proper bonding of the rails of the power company the cause of the electrolysis may be entirely removed or greatly minimized. Petitioner says it desires that these two public service utilities should operate their properties so as to prevent or minimize the leaks in the pipes and reduce the number of holes to be made in the proposed permanent improving of the streets; that if by requiring the water company to relocate its mains or pipes, or the power company to bond its rails this may be accomplished, or whatever else is necessary, the city asks it to be done by order of the commission. That the city has communicated the facts it has found to defendant (no facts are'stated in the petition which it has communicated), "but the only answer it has been able to get from either of said utilities is a complete denial on the part of the Bluefield Water Works and Improvement Company of the existing causes which are claimed to attribute to this trouble and a promise of only good intentions from the Princeton Power Company, with the result the paving season is here and the city unable to proceed with its program of improvements, due to the negligence of these two utilities." That, under present conditions the new pavement, if laid, will be greatly impaired or destroyed; that the cause of the leaks can be entirely eliminated or greatly reduced, but that both utilities refuse to cooperate with each other in finding the cause, and remove the source to relieve the city. The prayer is that upon an investigation as to the causes which produce the unusual number of water leaks, the utilities, either or both, be required to improve, change and modify their plants and properties so as to entirely remove the cause or minimize the same; and for general relief.

It will be seen that the substance of this complaint is that the water company has been cutting holes in the pavement for the purpose of repairing its pipes and will continue to do so to the great detriment of the permanent pavement when made, unless the cause for the leakage in the pipes be removed; that the water company had claimed that the cause was electrolysis of its pipes brought about by the escape of electricity from the power company's trolley system and that the cause could be entirely removed or minimized by bonding the rails of the trolley company; that the utilities refused to cooperate with each other and remove the cause of the leakage in the pipes; and the commission is asked to make an investigation of the cause, and when found, make the utilities remove the same; and if the cause be electrolysis then that the water works company be made to relocate its pipes or the power company to bond its rails, and thus protect the permanent improvement of the streets which the city proposes to make.

There is no question involved of.adequate service to the customers of these utilities nor of adequate facilities or of the reasonableness of the rates charged. There is no allegation that the patrans of either of the public utilities are being subjected to inconvenience, delay or damage. The city has called upon the commission to make an investigation of its complaint and as a result...