Gas Company v. Wheeling.

• Decision Date: 01 March 1875
• Court: West Virginia Supreme Court
• Parties: Gas Company v. Wheeling.

8 W.Va. 320

Gas Company

v.Wheeling.

Supreme Court of Appeals of West Virginia.

March 1, 1875.

1. In interpreting a submission to arbitration, regard is principally to

be had to the intention of the parties, and fair and liberal construction is to be adopted, without too great verbal accuracy.

2. The court will always seek to put as liberal, large and comprehen-

sive a construction upon the submission as the apparent intent of the parties to it will admit.

3. The authorization of a majority to make a valid decision need not

always be made in distinct terms in the submission.

4. By the common law, generally, where a submission is made by pri-

vate parties to a given number of persons, without authority given or to be inferred from the manner or circumstances of the submission that a smaller number may decide an award or decision, it will be void, unless made by all; though a different rule seems to prevail in matters of public concern.

5. The seventeenth section of an act of the general assembly of Vir-

ginia, passed the 18th day of March, 1850, and entitled "An act to incorporate the Wheeling Gas Company," provides "that said Company shall have the sole and exclusive privilege of using the the streets, alleys and public grounds of said city (meaning the city of Wheeling) for the purpose of lighting said city with gas tor the full term and period of thirty years from the time said Company shall commence the distribution and supply of gas, of which time notice shall be given by said Company to be entered amongst the records of said city, the assent of the Council of said city being first had and obtained as hereinafter provided: Provided, always, That upon the expiration of the twenty years from the commencement of said exclusive privilege hereby granted, and within six months thereafter, the said city of Wheeling shall have the right, at the discretion of the Council thereof, and of which notice shall be given in writing to the said Company, to purchase the said lots or grounds, works, apparatus, fixtures and property of said Com- pany, at the price and upon the terms to be agreed between the Council of said city and the directors of said Company, or to be_

fixed, ascertained and determined in the following manner: By the award, in writing, of three persons to be chosen, the first by the directors of said Company, the second by the Council of said City, and the third by the two thus chosen. The said arbitrators, in making up their award, and ascertaining the said value, shall have regard alone to the then actual value, in money, of the lots or grounds, buildings, apparatus, works and fixtures of said Company, and shall not consider the valueofthe franchises of the said charter, or the dividends or profits accruing to the stockholders. Upon complying with the terms of the award thus made, the said Company shall, by proper deeds or other instruments, in writing convey and assure to said city of Wheeling the said lots or grounds, buildings, apparatus, works, fixtures and property, together with this charter, to be thereafter held, used and enjoyed by the said City for the benefit of the inhabitants thereof. Upon said purchase being made, as aforesaid, this charter, together with all the franchises, rights and privileges granted, or intended to be granted, under it, shall be vested in the said City of Wheeling for the common benefit of the inhabitants thereof. And if upon the expiration of said term of twenty years, the said City of Wheeling shall not make the said purchase in the mode and upon the terms prescribed by this section, the said city shall have the right to make the said purchase upon the expiration of any and every five years, upon the same terms and in the same mode, at least six months notice of such intention being given in writing to said Company, by said city, and all contracts or other acts of of said Company which shall be made, entered into or attempted for the purpose of lessening, impairing or reducing the value of said lot of grounds, apparatus, pipes or fixtures, rights, franchises and privileges made in anticipation of the said purchase, shall be utterly null and void." Held: That it is manifest and clearly inferrible from the reading of the whole act by which the plaintiff was incorporated, of which said seventeenth section is a part, that it was the intent and purpose of the Legislature, by the provisions of said act and its manifest objects. First. That the Council of the city of Wheeling should have, and was given, by the said seventeenth section, in their discretion, the absolute right to purchase the gas works and property and become possessed thereof, together with all the franchises, rights and privileges granted under it, after the expiration of the twenty years aforesaid, and that the purchase should be made at the price and upon the terms to be agreed upon between the Council of the city and the directors of the plaintiff or by an award in writing, fixing the price and terms of the purchase to be made by arbitrators.

Second. That in the event the Council of the city elected to make the purchase and the said Council and the directors of the plaintiff should not agree upon the price and the terms of the purchase the price and terms should be fixed, ascertained and determined, at all events, by an award of the arbitrators.

Third. That the remedy given by arbitration should be complete and efficacious, and reasonably expeditious.

Fourth. That it should not be absolutely essential or necessary to the validity of the award that more than a majority of the arbitrators should agree to and sign the same, they all acting jointly.

Fifth. That the price and terms of the purchase should be fixed, ascertained, and determined by the arbitration, and the purchase and possession of the gas works property, &c, by the Council of the city should be completed and had by the city upon its complying with the terms of the award so made as aforesaid, or in good faith offering to do so by a legal tender of the price, in money, specified, or the equivalent of a legal tender, at, or within, the time prescribed by the award.

6. It is a rule of construction of a statute that the whole statute may

be examined with the view of arriving at the true intention of each part. The spirit, as well as the letter, of a statute must be ■ respected and when the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent.

7. An award made and signed by two only of the three arbitrators

chosen in accordance with the provisions of said seventeenth section, fixing, ascertaining and determining the price of said ga works property, &c, is within the provisions of the submission provided by said section, and is valid all three of the arbitrators having acted together, though one of the three arbitrators dissented from said award, and endorsed his dissent thereon, with his signature.

8 The said award being made and delivered by the arbitrators on the 29th day of May/1871, to the parties, the tender of the price money fixed in the award by the defendant to the president, secretary and treasurer of the plaintiff on the first day of June, 1871, at the office of the plaintiff, at a seasonable hour of that day, was with the circumstances stated in the opinion of the Court delivered in this cause, equivalent to a legal tender of said price money to the plaintiff.

9. That if the defendant by its authorized agents, on the 1st day of June, 1871, at the office of the plaintiff, tendered to the president, secretary and treasurer of the plaintiff the sum of money specified in the said award of the 29th day of May, 1871, as and for the ascertained price or value of the premises in controversy and the other property in the award referred to, and also a draft of a deed for said property, to be executed by the plaintiff to the deJ fendant and afterwards, and before the 30th of June, 1871, the board of directors, or the stockholders, of the plaintiff in meeting assembled, with knowledge of such tender, formally refused to accept or comply with the provisions of said award, and gave notice of such decision to the defendant, the action of the defendant, ill the premises, was a sufficient compliance, on its part, with the said award, to entitle it to the benefit of the award and purchase of the property, contemplated by the said seventeenth section.

10. That after the making and delivery of said award, fixing the price and terms of the purchase, and the tender of the purchase money as aforesaid, the defendant became and occupied the relation of the vendee and purchaser of the plaintiff, of the property in the award mentioned, and having acquired peacable possession of the property, under claim of being such vendee, after such tender, in this action, being ejectment, brought by the plaintiff against the defendant to recover possession of so much of said property as is in the declaration mentioned the defendant is such vendee or purchaser of the said property, as is contemplated by the twentieth section of the ninetieth chapter of the Code of West Virginia, and it is entitled to the benefit of said section as such vendee or purchaser by way of defence to and in bar of plaintiff's right to recover in said action under the circumstances and facts stated in said written opinion.

11. The court may refuse to give an instruction if it is so obscurely expressed as to leave in doubt the meaning intended.

12. An instruction which is susceptible of two constructions, one of

which is erroneous and may mislead the jury, should not be given

13. If an instruction asked does not correctly expound the law the court, as a general rule, may refuse to give it, and is not bound to modify it, or give any other instruction, in its place.

Supersedeas to a judgment of the circuit court of Ohio county. The case is fully stated in the opinion of the Court.

The Hon. ...