City of Huntington v. State Water Commission

• Decision Date: 09 March 1951
• Docket Number: No. 10318,10318
• Citation: 64 S.E.2d 225,135 W.Va. 568
• Parties: CITY OF HUNTINGTON, v. STATE WATER COMMISSION.
• Court: West Virginia Supreme Court

Page 225

64 S.E.2d 225

135 W.Va. 568

CITY OF HUNTINGTON, v. STATE WATER COMMISSION.

No. 10318.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 1951.

Decided March 9, 1951.

Syllabus by the Court.

1. This case distinguished from Danielley v. City of Princeton, 113 W.Va. 252, .

2. In construing an ambiguity in a statute, this Court will examine the title to the Act of the Legislature as a means of ascertaining the legislative intent, and the overall purpose of the legislation.

3. Code, 16-11, creating the State Water Commission, as amended and reenacted by Chapter 6, Acts of the Legislature, Regular Session, 1933; Chapter 130, Acts of the Legislature, Regular Session, 1937; Chapter 102, Acts of the Legislature, Regular Session, 1945; and Chapter 128, Acts of the Legislature, Regular Session, 1947, (Michie's Code, 1949, 16-11) should be liberally construed to effectuate the purposes thereof.

4. Code, 16-11, creating the State Water Commission, as amended and reenacted by Chapter 6, Acts of the Legislature, Regular Session, 1933; Chapter 130, Acts of the Legislature, Regular Session, 1937; Chapter 102, Acts of the Legislature, Regular Session, 1945; and Chapter 128, Acts of the Legislature, Regular Session, 1947, (Michie's Code, 1949, 16-11) provides simply for a review or consideration by the circuit court upon the petition of the person cited by the commission on the record made and had at the hearing before the commission.

5. Under Section 7 of Code, 16-11, creating the State Water Commission, as amended and reenacted by Chapter 6, Acts of the Legislature, Regular Session, 1933 (Michie's Code, 1949, 16-11) the circuit court has no constitutional power to determine whether a statutory pollution exists, but upon review it should determine the legal question whether the finding of the State Water Commission that a statutory pollution did or did not exist was clearly wrong or against the plain preponderance of the evidence. And likewise it is the duty of the circuit court on such review to pass on every constitutional and juridical question presented by the record before the State Water Commission, other than such constitutional questions as may have been passed upon by this Court on writ of error to the order of the circuit court.

H. L. Ducker, City Atty., Paul W. McCreight, Huntington, for appellant.

William C. Marland, Atty. Gen., Thomas J. Gillooly, Asst. Atty. Gen., for appellee.

RILEY, Judge.

The City of Huntington, under Code, 16-11, creating the State Water Commission, as amended and reenacted by Chapter 6, Acts of the Legislature, Regular Session, 1933; Chapter 130, Acts of the Legislature, Regular Session, 1937; Chapter 102, Acts of the Legislature, Regular Session, 1945, and Chapter 128, Acts of the Legislature, Regular Session, 1947, (Michie's Code, 1949, 16-11-5) was cited on July 21, 1949, by the State Water Commission (erroneously designated in the caption of the record before the commission as 'The West Virginia Water Commission') to appear on August 5, 1949, to show cause why an order should not issue from the commission, regulating the system of pollution in the Huntington area by the drainage of untreated sewage of the City of Huntington into the Guyandotte and Ohio Rivers. A hearing was had and the commission found that the City 'by its drainage of the untreated sewage of the City into the Guyandotte and Ohio Rivers does pollute said streams in such a manner as to make them contaminated, unclean and impure to such an extent that the water is both directly and indirectly detrimental to the public health; unsuitable with reasonable treatment for use as present or possible future source of public water supply and unsuitable for commercial industrial, agricultural, and other reasonable uses.'

Within the thirty-day period from the entry of the commission's order the City of Huntington filed its petition for review in the Circuit Court of Cabell County, and that court, holding that Section 7 was unconstitutional, which unconstitutionality served to vitiate the entire Act as violative of Article V of the Constitution of West Virginia, entered the final order complained of, and dismissed the petition from the docket of the court.

The statute contains no provisions for an appeal, writ of error, supersedeas or certiorari to any court; but Section 7 thereof, which is the only provision of the statute which provides for a 'review', reads: 'Any party feeling aggrieved by the entry of a final order by the commission, affecting him or it, may present a petition in writing to the circuit court of the county wherein the pollution originated or naturally flows, or to the judge of such court in vacation, within thirty days after the entry of such order, praying that such final order may be set aside or modified. The applicant shall deliver a copy of such petition to the secretary of the commission before presenting the same to the court or judge. The court or judge shall fix a time for the hearing on the application, but such hearing, unless by agreement by the parties, shall not be held sooner than five days after its presentation; and notice of the time and place of such hearing shall be forthwith delivered to the secretary of the commission, so that the commission may be represented at such hearing by one or more of its members or by counsel. For such hearing the commission shall file with the clerk of said court all papers, documents, evidence and records or certified copies thereof as were before the commission at the hearing or investigation resulting in the entry of the order from which the petitioner appeals. The commission shall filed with the court before the day fixed for the final hearing a written statement of its reasons for the entry of such order, and after arguments by counsel the court shall by order entered of record, make a finding as to whether the act complained of is a statutory pollution, and certify the same back to the commission which shall make such changes in its orders as will be necessary to make it comply with the law, as found by the court, governing the matter. The supreme court of appeals of the state shall have jurisdiction to review the order of the circuit court upon application of either party or any intervener. The prosecuting attorney of the county wherein the proceedings in the circuit court are had shall represent the commission, and the attorney general of the State shall represent it in any proceedings in the supreme court of appeals, and any intervener may be represented by counsel specially employed.' (Italics supplied.)

Section 13, added to Code, 16-11, by Chapter 130, Acts of the Legislature, 1937, provides, among other things, that any mayor or councilman, who fails or refuses to discharge any duty imposed upon him by the Act, or by the final order of the State Water Commission, or any duty imposed upon him by the ordinance of any governing body of any municipal corporation, or private corporation, association, or other legal entity, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five dollars, nor more than one hundred dollars 'to which may be added imprisonment in the county jail for any period not to exceed ninety days.' The petitioner, the City of Huntington, attacks this penalty provision of the statute as unconstitutional, but the circuit court in dealaring Section 7 unconstitutional and dismissing the petition from its docket did not pass upon the constitutionality of Section 13.

So we have before us on writ of error the questions whether said Section 7 is constitutional, and, if not, what is the effect of that section's unconstitutionality on the entire Act.

This Court in the case of Danielley v. City of Princeton, decided January 24, 1933, 113 W.Va. 252, 167 S.E. 620, held that Code, 16-11, before the 1933 amendment thereof, was unconstitutional and reversed the Circuit Court of Mercer County in overruling demurrers to the petition in that case. Code, 16-11-7, however, unlike the present Section 7, Acts of the Legislature, 1933, Chapter 6, provided that upon the hearing the circuit court 'may hear and consider any pertinent and relevant evidence either party or any intervener may offer, and shall determine all questions arising on the law and evidence and render such judgment or make such order upon the whole matter, as law and equity may require.' But the statute, as then constituted, did not contain a severability clause. In the Danielley case this Court held that Section 7, as then enacted, in that it permitted the circuit court to 'hear and consider any pertinent and relevant evidence' and to determine 'all questions arising on the law and evidence and render such judgment or make such order upon the whole matter, as law and equity may require', purported to delegate to the commission the power to hear evidence on a de novo basis and to determine all questions whether judicial, administrative, or, as the opinion states, 'quasi judicial.' It was because of the breadth of the purported powers, which the then statute vested in the commission and in the circuit court upon review, that this Court held Section 7 to be unconstitutional. True, the title to Chapter 14, Acts of the Legislature, 1929, is substantially the same as Code, 16-11, under consideration in the Danielley case, in that it provides, as does the title to Chapter 6, Acts of the Legislature, Regular Session, 1933, for 'the review' of the orders of the commission 'by the courts'. And both Acts in Section 7 thereof provide that 'The supreme court of appeals of the State shall have jurisdiction to review the order [judgment, used prior to the adoption of the 1933 Act] of the circuit court upon application of either party or any intervener.' Thus it seems that both Acts in the title thereof and in the language quoted from Section 7 of each indicates the legislative intent to vest in the circuit...