Danielley v. City Of Princeton

• Decision Date: 24 January 1933
• Docket Number: (CC 464)
• Citation: 113 W.Va. 252
• Court: West Virginia Supreme Court
• Parties: R. P. Danielley, et at. v. City of Princeton

113 W.Va. 252

R. P. Danielley, et at.

v.City of Princeton

(CC 464)

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1933.

Decided January 24, 1933.

1. Constitutional Law

The legislature cannot commit to the judiciary powers which are primarily executive.

2. Constitutional Law

Article 11 of chapter 16, Code 1931, establishing the State Water Commission, held to be unconstitutional.

Case Certified from Circuit Court, Mercer County. Suit by R P. Danielley and others against the City of Princeton. Demurrers to the petition were overruled, and the ruling certified for review.

Reversed.

H. B. Lee, Attorney General and W. Elliott Nefflen, Assistant Attorney General for State Water Commission.

H. E. De Jarnette and W. Broughton Johnston, for City of Princeton.

Hatcher, Judge:

Upon the petition of Danielley and others to the State Water Commission (hereinafter called the Commission), alleging the pollution of Brush Creek by the sewage of the city of Princeton and that petitioners were directly affected injuriously by such pollution, the city was cited under Code 1931. 16-11-5. A hearing was had, and an order was entered by the Commission directing the city to cease depositing sewage in Brush Creek or to install the Imhoff sewage filter system, which the Commission estimated would cost approximately $75,000 with an annual operating cost of $3,600 (or to install the "activated Sludge System", which is more expensive than the Imhoff). The city had the case removed to the circuit court by certiorari, and there demurred to the petition and the citation. The demurrers were overruled, and on the joint application of the parties to the suit, the petition and citation were certified to this Court for decision on their sufficiency.

Code, 16-11-5, provides that " any person * * * alleged to be causing the pollution of any water * * * shall, upon the petition of any person affected by such pollution be cited," etc., by the Commission. Section 1 of article 11 defines the term "person" when used in the article as including a municipal corporation; and defines the term "pollution", when so used, as meaning "the contaminating or rendering unclean or impure of any water by any act prohibited by section six, article six, chapter twenty of the code or sections two and three, article nine of this chapter." Section 2 of article 9 makes it unlawful to throw or cause to be thrown (knowingly and wilfully) "any dead animal, carcass or part thereof, or any putrid, nauseous or offensive substance, into any well, cistern, spring, brook or branch of running water which is used for domestic purposes." The petition charges that Brush Creek was used for domestic purposes before the city sewage was cast into it. The word "branch" is defined in Webster's New Int. Dictionary as "a small stream; a creek." The term "to throw" above, refers not only to a manual cast, but is used also in its broader sense, meaning to inject (as a fluid) and to put in. It will be remarked that the section makes no exception of any person as a polluter or of any act of pollution because of its magnitude; the sole test is the quality of the polluting substance. State v. Mitchell, 47 W. Va. 789, 791, 35 S. E. 845. It is beyond question that city sewage is essentially a nauseous and offensive substance. Hence the deposit of that sewage in Brush Creek causes its pollution within the satutory definition, and an examination of the two other sections defining pollution is unnecessary.

Counsel for the city point to the fact that article 1 of chapter 16, gives to the State Health Department and its several units, express advisory supervision over city sewers with the right to make and enforce rules relative thereto, and say that the delegation of such authority to that department excludes the Commission from exercising jurisdiction over such sewers. Overlapping jurisdiction does not prevent action by any one body of several upon which jurisdiction is conferred. Besides, the authority of the Commission is confined exclusively to cases of pollution and the Commission is required to "study questions arising in connection with pollution of waters in the state and * * * make research, investigation and scientific experiments in efforts to discover economical and practical methods for * * * the control and correction of stream pollution." Code, 16-11-8. These requirements are not extended to the other units of the State Health Department. The Commission is also given detailed authority not specifically given the other governmental bodies to "specify the particular system or means to be used or operated" to regulate the pollution. Code, 16-11-6. Therefore, the Commission is better prepared to deal with cases of pollution than the other health units.

Code, 16-11-7, provides that the circuit court shall review any order of the Commission and may hear and consider any pertinent evidence offered, etc., "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." This provision clearly contemplates a decision on the merits. Alderson v. Commissioners, 32 W. Va. 454, 460-2, 9 S. E. 863; Bee v. Seaman, 36 W. Va. 381, 15 S. E. 173; Farmington v. Commissioner, 112 Mass. 206, 213. Counsel contend that a decision on the merits requires the exercise of executive functions and that the act is unconstitutional because it would commit to the judiciary such executive power, citing Hodges v. Commission, 110 W. Va. 649. 159 S. E. 834. The statute under consideration in the Hodges case specifically provided for a trial de novo in the circuit court. As the instant statute does not have that express provision, the attorney general would differentiate the two statutes on that ground. The instant act terms the proceeding before the circuit court as "certiorari". But both common law and statutory certiorari confine the scope of judicial review to the record as made in the subordinate tribunal. Alderson v. Commissioner, supra, 462; Morgan v. R. R. Co.. 39 W. Va. 17. 23, 19 S. E. 588; Lor. Co. v. Brooks, 46 AV. Va. 732, 734, 34 S. E. 921. Both common law and statutory certiorari confine the review to judicial and quasi-judicial acts of the lower tribunal. R. R. Co. v. Triadelphia, 58 W Va. 487. 52 S. E. 499; Quesenberry v. Road Com, 103 W. Va. 714, 721. 138 S. E. 362. The provision in the act for...