Hodges v. Public Service Com'n

• Decision Date: 12 August 1931
• Docket Number: 7014.
• Citation: 159 S.E. 834,110 W.Va. 649
• Parties: HODGES et al. v. PUBLIC SERVICE COMMISSION et al.
• Court: West Virginia Supreme Court

159 S.E. 834

110 W.Va. 649

HODGES et al. v. PUBLIC SERVICE COMMISSION et al.

No. 7014.

Supreme Court of Appeals of West Virginia.

August 12, 1931

Submitted July 21, 1931.

Syllabus by the Court.

Legislature cannot commit to judiciary primarily legislative powers Water Power Act relating to development of water power held invalid in its entirety as illegal delegation of legislative power to Governor and circuit court (Acts 1929, c. 58; Const. art. 5).

The Legislature cannot commit to the judiciary powers which are primarily legislative. Article 5 of the Constitution applied.

Appeal from Circuit Court, Kanawha County.

Proceeding by the West Virginia Power & Transmission Company before the Public Service Commission, to obtain a license to construct a series of dams, opposed by Charles E. Hodges, and others. The Public Service Commission granted the license, and the protestants appealed to the circuit court. From a judgment of the circuit court reversing the order of the Public Service Commission and remanding the proceedings, the applicant appeals.

Judgment reversed, order of the Public Service Commission set aside and the application dismissed.

Steptoe & Johnson, of Clarksburg, Stoddard M. Stevens, Jr., of New York City, Louis A. Johnson and Chesney M. Carney, both of Clarksburg, and W. J. Maier, Jr., of Charleston, for appellant.

William S. John, Robert T. Donley, and John G. Zevely, all of Morgantown, and Frank A. O'Brien and Carl B. Galbraith both of Wheeling, for appellees.

T. L Read and Paul J. Carr, both of Hinton, and John Q. Hutchinson of Beckley, for City of Hinton and County Court of Summers County, amici curiæ.

D. E. Cuppett, of Thomas, for City of Thomas, Town of Davis, Board of Education of Fairfax Dist., amici curiæ.

Alan G. Bolton, of Parsons, for L. O. Mott and County Court of Tucker County amici curiæ.

W. K. Pritt, of Parsons, for City of Parsons, Board of Education Black Fork Dist., and River City Club, amici curiæ.

John H. Meek, of Huntington, and John V. Ray, of Charleston, for Vinson, Thompson, Meek & Scherr, of Huntington, and Payne Minor and Bouchelle, of Charleston, amici curiæ.

HATCHER J.

This proceeding was instituted by West Virginia Power & Transmission Company before the Public Service Commission under the Water Power Act of 1929. See chapter 58, Acts 1929. The commission granted the applicant a license to construct a series of dams on Cheat river and its watershed. The protestants are citizens of West Virginia who resisted the application before the commission, and then appealed to the circuit court of Kanawha county which reversed the commission and remanded the proceeding. The applicant secured an appeal to this court.

The act made the Governor of the state a member of the Public Service Commission and authorized the commission to investigate the effect of any proposed development of water power upon railroads, cities, towns, and villages and on the development of other natural resources; to hold hearings, etc., in connection with an application for a water power license; and directed the commission (among other things) "to weigh from the standpoint of the state as a whole and the people thereof the advantages and disadvantages arising therefrom before acting upon any application for a license," and to grant no license until the commission should have determined that the advantages substantially exceeded the disadvantages. The act provided for an appeal as a matter of right by any party of record from any decision of the commission granting or refusing to grant a license (and from any other final decision or order of the commission) to the circuit court of Kanawha county, with trial on the appeal de novo upon the original record before the commission and upon any additional evidence offered by any party in interest. An appeal from the circuit court to this court was provided, to be "upon the record in the circuit court in the usual manner." If reversed on either appeal, the act directed that the case be remanded to the commission for further proceedings "in accordance with the decision of the court."

The protestants initially contend that the act violates article 5 of the Constitution of West Virginia, in conferring legislative powers upon the Governor, and, on appeal, upon the circuit court of Kanawha county. The applicant challenges the right of the protestants to raise constitutional questions on the ground that they have no personal or proprietary interest in the subject-matter. Lack of such interest would ordinarily sustain this challenge. However, we have no jurisdiction to entertain this appeal unless it be conferred by the act. "By the plain terms of the Constitution appellate jurisdiction is limited to controversies arising in judicial proceedings, and the 'other appellate jurisdiction' that may be authorized must relate to 'civil and criminal cases,' that is some judicial proceedings begun in an inferior judicial tribunal. Such is the effect of our decisions. In some of them we have denied appellate jurisdiction to review the judgments or decrees of the circuit courts on appeal from the orders of the Board of Public Works, or other boards, involving simply executive or administrative matters, such as valuation of property for taxation, and the like. Never have we entertained jurisdiction from such decrees or orders of the circuit court unless the same have related to the taxability of the property." United Fuel Gas Co. v. P. S. Comm., 73 W.Va. 571, 578, 80 S.E. 931, 934. Since our jurisdiction herein depends entirely upon the validity of the act, it is our duty to scrutinize the act before considering the merits of this proceeding, lest that consideration should be vain. Under this view, the Supreme Court of Massachusetts examined the constitutionality of a statute, even upon the suggestion of amicus curiæ, holding that the court will not usually consider the constitutionality of a statute upon objection made by a stranger whose rights are affected by it, and ordinarily the parties to the suit are the only persons permitted to raise such a question, but, if the jurisdiction of the court depends entirely upon the validity of the statute, and the attention of the court is brought to that fact by persons interested in the effect to be given the statute, although not interested in the case before the court , it will consider whether it has jurisdiction before taking affirmative action. Mutual Benefit Life Insurance Co. v. Hardison, 199 Mass. 190, 85 N.E. 410, 412, 127 Am.St.Rep. 478. See, also, State v. Philips, 70 Fla. 340, 70 So. 367, 369, Ann.Cas. 1918A, 138; Gherna v. State, 16 Ariz. 344, 146 P. 494, 500, Ann.Cas. 1916D, 94.

We realize that we should consider the contention of the protestants "with great caution and delicacy" and not declare the act invalid unless so convinced beyond a reasonable doubt. Bridges v. Shallcross, 6 W. Va. 562, 574; Cooley's Const. Lim. (8th Ed.) ch. VII; Lewis' Sutherland, Stat. Const. (2d Ed.) § 83; Sedgewick on Stat. and Const. Law (2d Ed.) 409. We are equally cognizant that the Constitution represents the sovereign will of the people, and that our duty is imperative to arrest the execution of a statute which sets at naught the Constitution. Sedgewick, supra, 411; II Tucker on Const., § 364; Willoughby on the Const., § 12.

Article 5 is as follows: "The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature."

The phraseology of the article follows that of the Constitutions of Virginia and other older states. The framers of these older Constitutions were disciples of such great political teachers as Blackstone, Montesquieu, and Paley, who had declared that, in order to prevent arbitrary conduct by those in control, the legislative, executive, and judicial powers must be kept separate. See Story on the Constitution (5th Ed.) ch. VII. These teachings had been exemplified in the division of governmental power practiced in England. Hamilton asserted: "There is no liberty if the powers of judging be not separated from the legislative and executive powers." His expression was but the common thought of his contemporaries. See Willoughby, supra, § 1058. So thoroughly were these early statesmen imbued with this idea that the very first resolution passed in the convention which framed our national Constitution called for a separation of governmental powers. Story refers to this division as "a fundamental proposition," Cooley as a "fundamental principle," and Ordronaux as "this fundamental truth." Const. Leg. 344. "All writers upon constitutional law," said Smith, J., in State v. Johnson, 61 Kan. 803, 814, 60 P. 1068, 1072, 49 L.R.A. 662, "are agreed that the functions of the three departments should be kept as distinct and separate as possible."

This historical background is reflected perfectly in the Constitution of West Virginia. The separation of powers prescribed in article 5 is confirmed and consummated in other articles of the Constitution, namely, article 6 vests the legislative power in a senate and house of delegates; article 7 forms the executive department, consisting of the Governor secretary of state, state superintendent of free schools, auditor, treasurer, and the Attorney General; and article 8 lodges the judicial power of the state "in a supreme court of appeals in circuit courts and the judges thereof, in such inferior tribunals as are herein authorized and in justices of the peace." Section 1. We are aware that section 12 of article 8...