PSC OF WV v. FAYETTEVILLE, MUN. WATER WORKS
| Decision Date | 11 October 2002 |
| Docket Number | No. 30672.,30672. |
| Citation | 212 W.Va. 427,573 S.E.2d 338 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Petitioner, v. TOWN OF FAYETTEVILLE, MUNICIPAL WATER WORKS, Respondent |
Cassius H. Toon, Richard E. Hitt, Charleston, for the Petitioner.
James A. Dodrill, Glen Allen, for the Respondent.
The Public Service Commission (hereinafter "PSC") seeks a writ of mandamus to compel the Town of Fayetteville, West Virginia, to comply with a June 26, 2001, PSC order regarding reconnection service fees and to comply with statutory mandates regarding liability of landlords for delinquencies of tenants. Upon thorough evaluation of the record and the arguments of counsel, this Court grants the requested writ of mandamus.
On May 3, 2001, Fayetteville adopted an ordinance altering water and sewer fees, to be effective on July 1, 2001. On May 7, 2001, Fayetteville filed the ordinance with the PSC, as required by West Virginia Code § 24-3-5 (1923) (Repl.Vol.2001).1 Mr. Michael Neff subsequently filed a complaint with the PSC, alleging that his water service had been terminated for delinquent payments and that he had been unfairly charged a $25.00 sewer reconnection fee by the Town of Fayetteville. Mr. Neff had been charged $15.00 for water reconnection and $25.00 for sewer reconnection, despite the fact that his sewer had never been disconnected.2
Upon review of Mr. Neff's complaint, the PSC, by order dated June 26, 2001, directed Fayetteville to refund the $25.00 sewer reconnection fee to Mr. Neff, explaining that the practice of charging a reconnection fee for a service which had not been disconnected was inherently unfair and improper.3 It further ordered that Fayetteville's new ordinance be rejected insofar as it permitted the assessment of a sewer reconnection fee where the sewer service had not been disconnected.
On February 13, 2002, the PSC informed Fayetteville that the ordinance in question also violated West Virginia Code § 8-20-10(c) (2001) (Supp.2002), to the extent that it permitted a landlord to be held liable for a tenant's delinquency.4 Counsel for Fayetteville responded by letter dated February 26, 2002, and informed the PSC that although its interpretation of the statute was incorrect, a clarifying amendment would be considered to make it "abundantly clear that the necessary contractual relationship exists not only between the municipally operated public utility and the tenant, but also between the utility and the real property owner."
Counsel for Fayetteville further emphasized that West Virginia Code § 24-2-3 (1983) (Repl.Vol.2001) specifies that the rate making authority exercised by the PSC over other public utilities does not apply to municipal utilities and that the PSC has no authority over rates or charges of a municipality beyond that set forth in West Virginia Code § 24-2-4b. Subsequent to Fayetteville's refusal to comply with the June 26, 2001, PSC order and West Virginia Code § 8-20-10, the PSC filed this writ of mandamus in this Court.
The standard of review for requests for writs of mandamus is clearly established. In syllabus point two of Stapleton v. Board of Education of County of Lincoln, 204 W.Va. 368, 512 S.E.2d 881 (1998), this Court explained:
"A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
See also Syl. Pt. 10, State ex rel. Marockie v. Wagoner, 191 W.Va. 458, 446 S.E.2d 680 (1994).
This Court will utilize the mechanism of a writ of mandamus as extraordinary relief when a public officer or body has failed in the performance of a mandatory, non-delegable duty. Syl. Pt. 4, State ex rel. Affiliated Constr. Trades Found. v. Vieweg, 205 W.Va. 687, 520 S.E.2d 854 (1999). ." Syl. Pt. 1, Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1988).
With specific reference to the rights of the PSC to relief through mandamus, this Court explained in State ex rel. Public Service Commission v. Gore Water Association, 193 W.Va. 555, 457 S.E.2d 492 (1995), that the PSC is authorized to compel obedience to its lawful orders through mandamus or injunctive relief in the name of the State of West Virginia. Id. at 557, 457 S.E.2d at 494. This Court's proper review of a PSC order was set forth in syllabus point two of Monongahela Power Co. v. Public Service Commission, 166 W.Va. 423, 276 S.E.2d 179 (1981), as follows:
In reviewing a Public Service Commission order, we will first determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. We will examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Finally, we will determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors.
This Court subsequently summarized that formula for review in syllabus point one of Central West Virginia Refuse, Inc. v. Public Service Commission, 190 W.Va. 416, 438 S.E.2d 596 (1993), where we held as follows:
The detailed standard for our review of an order of the Public Service Commission contained in Syllabus Point 2 of Monongahela Power Co. v. Public Service Commission, 166 W.Va. 423, 276 S.E.2d 179 (1981), may be summarized as follows: (1) whether the Commission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence to support the Commission's findings; and, (3) whether the substantive result of the Commission's order is proper.
Syllabus point one of Sexton v. Public Service Commission, 188 W.Va. 305, 423 S.E.2d 914 (1992), also provides the following guidance:
In the petition for writ of mandamus filed with this Court, the PSC requested that Fayetteville be required to (1) comply with the June 26, 2001, PSC order regarding the reconnection fee; (2) file a tariff with the PSC; and (3) comply with West Virginia Code § 8-20-10, regarding landlord liability for a tenant's delinquency. Upon oral argument, however, this Court was informed that the issue of filing a tariff had been resolved; thus, the writ presently encompasses only the issues of the ordinance requiring a reconnection fee under certain circumstances and compliance with West Virginia Code § 8-20-10.
The extent of PSC authority over a municipality is central to resolution of this matter. The PSC's considerable powers concerning the establishment of rates for public utilities are developed in West Virginia Code § 24-2-3, which states, in pertinent part, as follows:
The [PSC] shall have the power to enforce, originate, establish, change and promulgate tariffs, rates, joint rates, tolls and schedules for all public utilities.... And whenever the [PSC] shall, after hearing, find any existing rates ... unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, the [PSC] shall by an order fix reasonable rates ... to be followed in the future in lieu of those found to be unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any provisions of law [.]
In syllabus point one of West Virginia-Citizen Action Group v. Public Service Commission, 175 W.Va. 39, 330 S.E.2d 849 (1985), this Court explained:
[t]he Public Service Commission was created by the Legislature for the purpose of exercising regulatory authority over public utilities. Its function is to require such entities to perform in a manner designed to safeguard the interests of the public and the utilities. Its primary purpose is to serve the interests of the public. Boggs v. Public Service Commission, 154 W.Va. 146, 174 S.E.2d 331 (1970).
The PSC's jurisdiction is further derived from West Virginia Code § 24-2-7(a) (1979) (Repl.Vol.2001), which provides:
Whenever, under the provisions of this chapter, the [PSC] shall find any regulations, measurements, practices,...
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