City of Huntington v. State Water Commission, 10476

Citation137 W.Va. 786,73 S.E.2d 833
Decision Date14 January 1953
Docket NumberNo. 10476,10476
CourtSupreme Court of West Virginia
PartiesCITY OF HUNTINGTON, v. STATE WATER COMMISSION.

Syllabus by the Court.

1. An order of the State Water Commission, requiring a municipal corporation to cease and desist from polluting the waters of certain designated rivers within this State and to install, use and operate a practical and reasonably available system or means to reduce such pollution to an acceptable minimum, which is within the constitutional and legislative power of the Commission, will not be disturbed upon review by this Court unless it appears that the finding of fact on which such order is based is contrary to evidence, or is without evidence to support it, or that the Commission, in entering such order, has misapplied legal principles.

2. The Legislature is the depositary of the police power of the state and may delegate it to boards and commissions.

3. 'The police power of a state is the power of government inherent in every sovereignty to enact laws, within constitutional limits, to promote the general welfare of its citizens. The Fourteenth Amendment of the Federal Constitution does not impair the police power of a state.' Point 2, Syllabus, Nulter v. State Road Commission of West Virginia, 119 W.Va. 312 [193 S.E. 54, 194 S.E. 270].

4. The police power of the state embraces regulations designed to promote public health, public morals and public safety.

5. Public health is a matter of statewide rather than local or municipal interest or concern and in the regulation of public health the power of the state is supreme.

6. In matters which do not concern the inhabitants of a municipality alone, but which are of statewide interest or concern, a municipality can be compelled to carry out the plans of the state and to perform the duties which it imposes.

7. Under the police power of this State, the Legislature, in the regulation of public health, has the authority to enact Article 11, Chapter 16, Code, 1931, as amended; and the provisions of Sections 11, 13 and 14 of that article are a valid exercise of legislative power, do not contravene Article III, Section 10, of the Constitution of this State, or the Fourteenth Amendment to the Constitution of the United States, and are constitutional and valid.

H. L. Ducker, Paul W. McCreight, Huntington, for plaintiff in error.

John G. Fox, Atty. Gen. and Thomas J. Gillooly, Asst. Atty. Gen., for defendant in error.

HAYMOND, President.

This is a proceeding instituted in the Circuit Court of Cabell County, West Virginia, on September 13, 1949, by the petitioner, the City of Huntington, a municipal corporation, against the State Water Commission of West Virginia herein sometimes designated as 'Commission' for review of a final order entered by the Commission on August 17, 1949, which required the City of Huntington to cease and desist from polluting the Guyandotte River and the Ohio River and to notify the Commission within thirty days from the date of the entry of the order that the city would fully comply with its provisions and install, use and operate a practical and reasonably available system or means which would reduce the pollution of those rivers to an acceptable minimum. Upon a hearing of the proceeding, instituted in the circuit court under Section 7, Article 11, Chapter 16 of the Code, 1931, as amended and reenacted by Chapter 6, Acts of the Legislature, 1933, Regular Session, that court, by order entered December 15, 1951, affirmed the order entered by the Commission on August 17, 1949, and dismissed the proceeding. To the final order of the circuit court this Court awarded this writ of error upon the application of the petitioner, the City of Huntington.

This is the second review by this Court relating to the order of the Commission. Upon the first review, which involved the constitutionality of Section 7 of the statute, as amended, this Court sustained the constitutionality of that section and remanded the proceeding to the circuit court with directions that it hear and determine all questions which had not then been determined by it involving the validity of the order of the Commission and the constitutionality of the statute by virtue of which the Commission entered the order of which the petitioner, the City of Huntington, complains. City of Huntington v. State Water Commission, W.Va., 64 S.E.2d 225.

Upon the remand of the proceedings to the circuit court, that court, as directed by this Court, proceeded to hear and determine the undetermined questions involved. It held that the finding of the Commission that the waters of the Guyandotte River and the Ohio River were polluted by the discharge of untreated sewage into those streams from the City of Huntington was justified by the evidence; that in making such finding the Commission did not act in an arbitrary manner or exceed its statutory powers; and that Article 11, Chapter 16 of the Code, 1931, as amended, and each of its sections, are constitutional and valid; and by final judgment entered December 15, 1951, affirmed the order of the Commission of August 17, 1949, and dismissed the proceeding.

In support of its contentions that the final order of the Commission is invalid and that Article 11, Chapter 16, Code, 1931, as amended, is unconstitutional, the petitioner, by its assignment of errors, seeks reversal of the order of the circuit court and annulment of the order of the Commission on these grounds: (1) The order of the Commission is arbitrary and in excess of its statutory powers; and (2) Article 11, Chapter 16, Code, 1931, as amended, is unconstitutional (a) in authorizing the Commission to require of the City of Huntington, a municipal corporation with limited powers, action and financial expenditures which it is without sufficient authority or means to undertake or perform, (b) in imposing penalties for violation of an order of the Commission, and (c) in rendering ineffective the discretion vested in the council of the City of Huntington under existing statutes.

The specifically challenged statutory provisions are Sections 11 and 13, Article 11, Chapter 16, Code, 1931, as amended by Chapter 130, Acts of the Legislature, 1937, Regular Session, and Section 14, Article 11, Chapter 16, Code, 1931, as amended, by Chapter 130, Acts of the Legislature, 1937, Regular Session, and Chapter 102, Acts of the Legislature, 1945, Regular Session.

Section 11 relating to compliance with the final order of the Commission and the methods of raising funds for that purpose by certain designated persons, including a municipality, provides in part that any municipal corporation upon which a final order of the Commission is served shall, within thirty days after receipt of such order, or after judgment affirming such order is entered, take steps to acquire or construct such plants, machinery or works, or to repair, alter or extend existing plants, machinery or works, as may be necessary for the disposition or the treatment of the organic or inorganic matter which is causing, or contributing to, a polluted condition of any water or waters, or shall take such other steps as may be necessary to comply with the final order of the Commission; and that if the offender is a municipal corporation the cost necessary to comply with the order shall be paid out of funds on hand available for that purpose, or out of the general funds of the municipal corporation not otherwise appropriated, or if there are not sufficient funds on hand or unappropriated the necessary funds shall be raised by the issuance of bonds. The section further provides that if the estimated cost is such that the necessary bond issue would not raise the total outstanding bonded indebtedness of the municipality in excess of the constitutional limit upon such indebtedness, such bonds may be issued as a direct obligation of the municipality and retired by a general tax levy upon all property within the municipality listed and assessed for taxation; that if the amount of such bonds would raise the total outstanding bonded indebtedness of the municipality in excess of the constitutional limit, or if the municipality should determine not to issue direct obligation bonds, it shall issue revenue bonds and provide for their retirement in the same manner and subject to the same conditions provided for such bonds in Chapter 25, Acts of the Legislature, 1933, First Extraordinary Session; and that objections by the owners of real estate to such revenue bonds shall not apply to such issue or operate to justify or excuse failure by the municipality to comply with the order of the Commission.

Section 13 provides in part that it shall be the duty of each member of the governing body of a municipal corporation, against whom a final order of the Commission has been issued, to begin appropriate action or proceedings to comply with the order within thirty days from receipt of the order if no action has been commenced in the circuit court to set aside or vacate it, or, if such action has been brought, within thirty days from the date of the judgment affirming the order; that failure of the governing body of a municipal corporation to provide for financing and construction of such works as may be necessary to carry out the order shall constitute failure to begin appropriate action or proceedings to comply with it; and that any mayor, or councilman, of such municipal corporation who fails or refuses to discharge any duty imposed by the statute or by final order of the Commission shall be deemed guilty of a misdemeanor and upon conviction fined not less than twenty five dollars nor more than one hundred dollars, to which may be added imprisonment in the county jail for a period not to exceed ninety days.

Section 14 provides in part that the Commission shall have authority, in its discretion, to extend the time fixed in any final order within which...

To continue reading

Request your trial
27 cases
  • EQT Prod. Co. v. Wender, Civil Action No. 16-00290
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 10, 2016
    ...of the State[ ] when that power has been exercised." Brackman's Inc., 27 S.E.2d at 78 ; see also City of Huntington v. State Water Commission, 137 W.Va. 786, 800, 73 S.E.2d 833 (1953).1. Preemption by the West Virginia Oil and Gas ActWest Virginia Code section 22–1–1(a)(2) provides that "[t......
  • Quesenberry v. Estep, 10827
    • United States
    • Supreme Court of West Virginia
    • December 22, 1956
    ...of the citizen, the enjoyment of private and social life, and the beneficial use of property.' See also The City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833; Miller v. Board of Public Works of City of Los Angeles, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, writ of e......
  • West Virginia Human Rights Commission v. United Transp. Union, Local No. 655, s. 14212
    • United States
    • Supreme Court of West Virginia
    • July 2, 1981
    ...if the findings are supported by substantial evidence or are based upon conflicting evidence." City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833, 839 (1953). The substantial evidence rule for findings of fact applies to review of administrative agency decisions, and......
  • State ex rel. Appalachian Power Co. v. Gainer, s. 12446
    • United States
    • Supreme Court of West Virginia
    • July 13, 1965
    ...5 syl., 119 S.E.2d 833; Nulter v. State Road Commission, pt. 2 syl., 119 W.Va. 312, 193 S.E. 549 (194 S.E. 270); City of Huntington v. State Water Commission, 137 W.Va. 786, pt. 3 syl., 73 S.E.2d 833. The police power is difficult to define because it is so extensive, elastic and constantly......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT