City Of Philippi v. Tygarts Valley Water Co

• Decision Date: 15 September 1925
• Docket Number: (C. C. No. 359.)
• Citation: 129 S.E. 465
• Court: West Virginia Supreme Court
• Parties: CITY OF PHILIPPI . v. TYGARTS VALLEY WATER CO.

129 S.E. 465

CITY OF PHILIPPI .

v.TYGARTS VALLEY WATER CO.

(C. C. No. 359.)

Supreme Court of Appeals of West Virginia.

Sept. 15, 1925.)

(Syllabus by the Court.)

Questions Certified from Circuit Court, Barbour County.

Proceeding by the City of Philippi for mandamus to be directed to the Tygarts Valley Water Company. After overruling a demurrer and motion to quash an amended petition and an alternative writ of mandamus, the trial court certified questions. Ruling reversed, with leave to relator to amend alternative writ.

D. D. Stemple, of Philippi, for relator.

W. T. Ice, Jr., of Philippi, for respondent.

WOODS, J. The city of Philippi, a municipal corporation, presented its petition to the circuit court of Barbour county, alleging, among other things, that the defendant, the Tygarts Valley Water Company, a public service corporation, authorized to furnish water to the city of Philippi, and to the inhabitants and citizens thereof, as provided in the franchise granted to it by said city, had failed to comply with certain ordinances alleged to have been passed and adopted by the common council of the city of Philippi on the 12th day of August, 1924, in respect to certain improvements and additions required by said ordinances to be made by the respondent to the water plant and equipment owned by it. The ordinance reads:

"It being made to appear to the common council of the city of Philippi that the water now being furnished for the use of the inhabitants of said city (the same being furnished for compensation and reward) is unsanitary, unhealthy, and has an offensive odor, and the said council being of opinion that it is necessary to filter said water and repair the reservoir in order to make the same in a sanitary condition and fit for use, therefore be it ordained and enacted by the common council of the city of Philippi, that:

(1) For the purpose of purifying and making sanitary and fit for use the water furnished to the inhabitants of the city of Philippi, the Tygarts Valley Water Company shall install and put in operation a good and sufficient filtering plant within 90 days from the passage of this ordinance.

(2) The said Tygarts Valley Water Company shall also, for the further purpose of making said water sanitary and fit for use, install and place in the reservoir now in use by said water company, a good and sufficient cement bottom and a cement wall extending one foot above the surrounding surface entirely. around the same, and also install and place in use adequate and sufficient drain pipes to the end that said reservoir may be properly cleaned, all of which shall be done within a like period of ninety days from the passage of this ordinance.

(3) Any person, firm or corporation, violating the two preceding ordinances shall be fined not to exceed $500, and every day after the expiration of the 90 days mentioned in the two preceding sections shall constitute a separate offense."

The petition prays that the respondent may be required by a writ of mandamus, to be issued by the court, to comply with and perform the conditions and requirements of the said ordinances, and that an alternative writ of mandamus issue requiring the respondent, the Tygarts Valley Water Company, to show cause why it should not do so. The alternative writ was issued. The respondent, the Tygarts Valley Water Company, demurred to the petition and alternative writ, and to each paragraph thereof, and moved to quash the same. The demurrer and motion to quash were argued by counsel, on the 14th day of February, 1925. The court sustained the demurrer and motion to quash, as to the ground that it did not appear from the petition and alternative writ that the respondent was notified of the enactment of and demand made of it to comply with the ordinances. The relator asked leave of the court to amend the petition by adding therein the following:

"And although, on the 13th day of August, 1924, an attested copy of said ordinance adopted on August 12, 1924, as aforesaid, was served upon the defendant, the Tygarts Valley Water Company, by delivering such copy to A. G. Ballard, president of the Tygarts Valley Water Company, and the defendant was then and thereby notified of the enactment of said ordinance and the duties and requirements imposed upon it thereby, but defendant, being so notified, did not manifest any desire, intention or inclination to comply therewith."

Such amendment was made; the order of the court reciting "and the said petition is so amended." The respondent thereupon renewed its demurrer and motion to quash the petition as amended and the alternative writ, which demurrer and motion to quash the court overruled, and, by agreement of parties, the questions arising upon the demurrer and motion to quash were certified to this court as follows: (1) The petition and alternative writ show that certain ordinances were passed and adopted by the common council of the city of Philippi, and provided for the violation thereof a fine not to exceed $500, but said ordinances do not authorize or provide for a proceeding by mandamus to compel compliance with said ordinances. (2) The said petition and alternative writ are not sufficient in law, and do not allege a clear legal right in petitioner to have the relief prayed for therein. (3) It does not appear from said petition and alternative writ that the defendant, the Tygarts Valley Water Company, was notified and demand made of it to comply with the said ordinances passed and adopted by the common council of the city of Philippi. (4) The ordinances set out in the petition and alternative writ are unreasonable, and the act of the Legislature of West Virginia, passed on the 17th day of April, 1923 (Laws 1923, c. 71), amending the charter of the city of Philippi, docs not authorize the common council of the city of Philippi to require the defendant, the Tygarts Valley Water Company, to do and perform all of the acts and things set out in the ordinances passed and adopted by the common council of the city of Philippi on the 12th day of August, 1924, as set out in the petition and alternative writ. (5) The petitioner, the city of Philippi, has another specific and adequate remedy. The Public Service Commission of West Virginia has full power and authority to consider the matters alleged in the petition and alternative writ, and to grant all proper relief in the premises.

Some time after the public service corporation entered upon its duties under the franchise, the charter to said city was amended by an act of the Legislature of West Virginia. By the amendment the common council of the city was given power and authority to pass and enact ordinances, and so much of such amendment (chapter 71, Acts of 1923), as affects this case, provides:

"The council shall have the right to require of any water company or person furnishing water for the use of the inhabitants of said city, for hire, compensation or reward, to obey any order of the council with respect to keeping the reservoir or other source from which said water is furnished, free from filth and in a good, clean condition, and may require said water company to properly filter the water distributed for use, and may require said company to put in such lines as may be necessary to pump the said water into the reservoir or other receptacle therefor, without pumping the same into the main distributing lines, or in any other way or manner affecting them; and may fix fines and penalties for any failure on the part of any corporation, company or other person distributing water, to obey any order of the council or any authorized officer of the town, respecting the same, or any ordinance that may be enacted by the council relative thereto." Section 16, subd. 72.

Thus it will be seen that the city was acting within its authority when the ordinance hereinbefore set out was enacted. The powers granted are broad and ample, the object being to secure pure water, free from infectious germs and disease, for the needs of the municipality and its people. Courts uniformly refuse to enforce purely private contracts by mandamus. But where the public interests are involved, the contract may be thus enforced. As long as a public service corporation maintains its franchise it must fulfill the obligations to the public directly or impliedly arising from the same. Town of Gassaway v. Gassaway Gas Co., 75 W. Va. 60, 83 S. E. 189. The function of a writ of mandamus is to enforce the performance of duties growing out of the discharge of public functions, or imposed by statute, or in some respects involving a trust or official duty. Richmond Railway & Electric Co. v. Brown, 97 Va. 26, 32 S. E. 775; Railway Co. v. Boardof Sup'rs of Scott County, 109 Va. 34, 63 S. E. 412; Portsmouth Water Co. v. Portsmouth, 112 Va. 158, 70 S. E. 529; Vinton-Roanoke Water Co. v. Roanoke, 110 Va. 661, 66 S. E. 835.

The first point made is that the ordinance did not provide for mandamus but for criminal prosecution...