Delardas v. Morgantown Water Commission, 12250A

• Decision Date: 17 July 1964
• Docket Number: No. 12250A,12250A
• Citation: 148 W.Va. 776,137 S.E.2d 426
• Court: West Virginia Supreme Court
• Parties: , 56 P.U.R.3d 42 William DELARDAS, who sues, etc. v. MORGANTOWN WATER COMMISSION et al.

Page 426

137 S.E.2d 426

148 W.Va. 776, 56 P.U.R.3d 42

William DELARDAS, who sues, etc. v. MORGANTOWN WATER COMMISSION et al.

No. 12250A.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1964.

Decided July 17, 1964.

Syllabus by the Court

1. Statutes relating to the same subject, regardless of the time of their enactment and whether the later statute refers to the former statute, are to be read and construed together and considered as a single statute the parts of which had been enacted at the same time.

2. The policy of the law of this State is that all public utilities, whether publicly or privately owned, shall be subject to the supervision of the public service commission.

3. In vesting the public service commission with the jurisdiction and the power to regulate and control the public utilities in this State, the Legislature has authorized it to exercise the predominant power of the State with respect to such utilities, in order that the facilities, charges and services of all public service corporations shall not be contrary to law and that they shall be just and fair, just and reasonable, and just and proper.

4. 'Attached to every statute, every charter, every ordinance or resolution affecting, or adopted by, a municipality, is the implied condition that the same must yield to the predominant power of the State, when that power has been exercised. To hold otherwise would lead to serious confusion, and ofttimes absurd results.' Brackman's, Incorporated v. City of Huntington, 126 W.Va. 21 .

5. The provisions of Section 20, Article 4, Chapter 8, Code, 1931, as amended, do not divest the public service commission of the jurisdiction conferred upon it by Section 1, Article 2, Chapter 24, Code, 1931, as amended, to supervise and regulate the sewer system of the City of Morgantown.

6. A writ of mandamus will not be issued in any case when it is unnecessary or when, if sued, it would prove unavailing, fruitless or nugatory.

Stanley R. Cox, Jr., Morgantown, for plaintiff in error.

Jesse M. Jaco, Mike Magro, Jr., Morgantown, for defendants in error.

HAYMOND, President:

This is a writ of error to the final judgment of the Circuit Court of Monongalia County in a mandamus proceeding instituted in that court on March 16, 1961, in which the petitioner, William Delardas, who sues individually and in behalf of the Morgantown Citizens League, seeks a writ to compel the defendants, the City of Morgantown and the members of its common council, to hold a special election on the question of sewer fees as required by an ordinance of that city. The petitioner also seeks an order adjudging the ordinance to be null and void and an order prohibiting the defendant Morgantown Water Commission from attempting to collect the sewer fees provided by the ordinance.

This case has previously been before this Court upon writ of error awarded in June 1963 which was dismissed as improvidently awarded for the reason that the order to which the prior writ was awarded was not a final or appealable judgment. Delardas v. Mortgantown Water Commission, W.Va., 134 S.E.2d 889.

After the dismissal of the former writ of error as improvidently awarded, the proceeding was dismissed by a final judgment of the circuit court entered March 5, 1964. To that judgment this Court granted this writ of error and supersedeas upon the application of the petitioner William Delardas on March 16, 1964.

By stipulation of the attorneys representing the respective parties and by leave of this Court the printed record considered upon the first writ of error, which now includes the final dismissal order of the circuit court, is adopted as the official record before this Court, and this proceeding was submitted for decision at a former day of this term upon the foregoing stipulation and record and the original briefs previously filed by the attorneys in behalf of the respective parties.

In January 1960 the City of Morgantown filed an application with the Public Service Commission of West Virginia for a certificate of convenience and necessity to operate and maintain a municipal sewer system for the collection and disposal of sewage within and also outside the corporate limits of the city, and for authority to establish service rates and charges on the basis of 50% of each water bill for service within the city and on the basis of 80% of each water bill for service outside the city; and by order of the commission of January 18, 1960 the matter was set for hearing on February 26, 1960, in Charleston. The applicant was required to give notice of the filing of its application which was done in compliance with the order of the commission.

Pending a hearing in the proceeding before the public service commission, and apparently at its direction, the City of Morgantown, on September 20, 1960, enacted an ordinance relating to maintenance and improvement of a sewer system and the establishment and the collection of the rates and charges for sewerage service. The ordinance set forth in detail a schedule of rates and charges based on the amount of water sold to consumers, and contained a provision that it should become effective unless written protests were made and filed by 10% of the registered voters, which was the minimum percentage then required by the statute, within 15 days from the last publication of the ordinance. The ordinance was duly published and a petition in opposition to the ordinance and demanding a referendum, signed by the then required percentage of voters, which has since been increased from 10% to 30% by amendment of the pertinent statute effective March 9, 1961 but which does not here apply, was filed within the prescribed period of time. In November 1960 certified copies of the ordinance were filed with the public service commission and on December 30, 1960, the commission entered a final order which granted the requested certificate of convenience and necessity, required the city to file a tariff prescribing the rates and charges as specified in the ordinance, and approved and authorized the city to put in effect, on and after the date of the order of the commission, the rates and charges for sewerage service contained in the schedule set forth in the ordinance. No review to modify, reverse or set aside the order of the commission was requested and that order, which after thirty days from its entry, is not subject to the judicial review provided by Section 1, Article 5, Chapter 24, Code, 1931, was in force and effect when this proceeding was instituted. After the entry of the order by the commission the city decided not to hold an election as provided by the ordinance; and on March 16, 1961, the petitioner instituted this mandamus proceeding in the Circuit Court of Monongalia County.

The circuit court sustained demurrers to an original petition and an amended petition with leave to file a second amended and supplemental petition, which was filed by order entered April 27, 1962. By order entered July 2, 1962, the motion of the defendants the City of Morgantown and the members of its council, to strike the exhibits filed with the second amended and supplemental petition, consisting of copies of the municipal charter, the final order of the public service commission, a notice, and the ordinance, was sustained and, by order entered February 28, 1963, the demurrer of the same defendants to the second amended and supplemental petition was also sustained but there was no request for leave to amend the petition. By its final judgment entered March 5, 1964, this proceeding was dismissed and retired from the docket of the circuit court.

The petitioner asserts that the controlling questions for decision upon this writ of error are (1) whether the public service commission has authority to enter an order approving a rate ordinance in the absence of an election validating the ordinance as provided by Section 20, Article 4, Chapter 8, Code, 1931, as amended; and (2) whether, after approval by the public service commission of the rates and charges specified in the ordinance, the voters of the municipality may compel compliance with the election requirement of the foregoing statute.

The statute upon which the petitioner relies, Section 20, Article 4, Chapter 8, Code, 1931, as amended, in effect when the ordinance was enacted on September 20, 1960 and the order of the commission was entered on December 30, 1960, and before its amendment by Chapter 99, Acts of the Legislature, 1961, Regular Session, to the extent here pertinent, contained these provisions: 'The governing authority of every municipal corporation that furnishes any essential or special municipal service, including * * *, sewerage and sewage disposal, and the collection and disposal of garbage, ashes or other waste materials, may by ordinance provide for the continuance, maintenance, installation or improvement of such service, may make reasonable regulations with respect thereto, may impose upon the users of such service reasonable rates, fees and charges to be collected in the same manner as municipal taxes are collected or in some other manner specified in the ordinance, * * *. Provided, however, that any ordinance enacted under the provisions of this section shall be published at least once a week for two successive weeks in two newspapers published in such municipality, * * *, and in the event ten per cent of the registered voters by written petition duly signed by them and filed with the municipal authority within fifteen days after the expiration of such publishing or posting protest against such ordinance, the ordinance shall not become effective until it shall be ratified by a majority of the votes cast by the duly qualified voters of such municipality at an election duly and regularly held as provided by the laws and ordinances of the municipality and the result of such election ascertained and declared.' The amendment by Chapter 99, Acts of the Legislature, 19...