Randall Gas Co. v. Star Glass Co.

• Decision Date: 25 April 1916
• Docket Number: 3019.
• Citation: 88 S.E. 840,78 W.Va. 252
• Parties: RANDALL GAS CO. v. STAR GLASS CO.
• Court: West Virginia Supreme Court

88 S.E. 840

78 W.Va. 252

RANDALL GAS CO. v. STAR GLASS CO.

No. 3019.

Supreme Court of Appeals of West Virginia.

April 25, 1916

Syllabus by the Court.

In the exercise of the power and authority to change unjust or unreasonable intrastate rates, charges, and tolls, so as to make them just and reasonable, conferred upon the Public Service Commission by section 5, c. 9, of the Acts of 1913 (Code 1913, c. 15 o, § 640), notice to the patrons of the public service corporation to be affected by the order of the intention of the Commission to make such alteration is not required by the statute.

The power of the Commission to alter rates, charges, and tolls for public service is delegated legislative power, and the procedure in the exercise thereof is also legislative in character.

The provisions of section 9 of said act (Code 1913, c. 15 o, § 644), forbidding changes of rates without previous notice to the Commission and the public, does not apply to changes actually made by the Commission itself.

Permission granted to a public service corporation by the Commission to increase its rates within maximum limits fixed by its order is not a prescription of a new actual rate; and the maximum rate so fixed cannot be collected by the corporation, unless it has put it into effect in the manner prescribed by said section 9.

An order granting such permission is not tantamount to the filing with the Commission of the schedule required by section 12 of said act (Code 1913, c. 15 o, § 647) nor is it the equivalent thereof or a sufficient substitute therefor.

Error to Circuit Court, Monongalia County.

Action by the Randall Gas Company against the Star Glass Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Terence D. Stewart and Frank Cox, both of Morgantown, for plaintiff in error.

Lazzelle & Stewart, of Morgantown, for defendant in error.

POFFENBARGER, J.

The judgment under review, denying to the plaintiff right of recovery of the difference between the price of gas furnished by it to the defendant, at the rate prescribed by a contract between the parties, and the price thereof at a higher maximum rate subsequently fixed by the Public Service Commission, was rendered in a case appealed from the judgment of a justice, and on a finding by the court from an agreed statement of facts.

By a contract dated January 19, 1905, the Randall Gas & Water Company, of which the plaintiff is successor, bound itself to supply the Star Glass Company, natural gas for a period of ten years, at five cents per thousand cubic feet for the first five years, not more than six cents for the next two years, not more than seven cents for the next two years, and not more than eight cents for the next, or last year. In August, 1914, the gas company made application to the Public Service Commission for authority to change its rates, and after publication of the application in one or more newspapers in the county, for four successive weeks, by the company, under an order of the Commission, permission to charge higher rates was granted by the Commission, September 25, 1914, without objection on the part of any of the applicant's patrons. The order then made permitted the company "to put into effect the following gas rates: For the first 150,000 cu. ft., 20c per M. cu. ft. For the second 150,000 cu. ft., 15c per M. cu. ft. All over 300,000 cu. ft 10c per M. cu. ft." It is silent as to whether such quantities should be furnished or supplied and paid for monthly or otherwise. The glass company was not a party to the proceeding and was not personally served with any notice thereof. If it can be deemed to have had notice of it at all such notice was merely constructive and effected by the newspaper publications of the petition or application. Though no claim was made, or bill rendered, under the new rates until 30 days after the date of the order establishing them, they were not formally filed with the Commission nor published for the information of the public.

Power in the Legislature to regulate rates of public service corporations immediately and directly by its own act, or mediately and indirectly by a commission or other tribunal created by it with authority to regulate them, is not denied. On the contrary, it is admitted, but an effort is made to exclude the rate in question, or the parties between whom it subsists, from the operation of the Public Service Commission Act. The grounds of this contention are not very clearly indicated. Denial of the application of the principles declared in L. & N. Ry. Co. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297, 34 L.R.A. (N. S.) 671, and City of Benwood v. Public Service Commission, 83 S.E. 295, L.R.A. 1915C, 261, is supplemented by the assertion that the Legislature has no power to regulate rates against the interests of the people and in favor of a corporation. That the Public Service Commission may raise, as well as lower, rates, in the exercise of its power of regulation and restriction, has been expressly decided in the case last above mentioned; and the principles enunciated in the class of cases to which the two just referred to belong, fully sustain the jurisdiction and power of the Public Service Commission over rates of the character of the one here involved, if the plaintiff is a public service corporation.

There is no express stipulation that the Randall Gas Company is engaged in the business of furnishing gas by way of general public service, and the character of its business is not a fact within the judicial knowledge of the court, but the agreed statement of facts proceeds upon the assumption that it is engaged in such business. The order of the Public Service Commission treats it as a public service corporation, and paragraph 7 of the statement of agreed facts speaks of its "rates to consumers." Obviously, therefore, its status was not regarded as a matter in controversy and was treated as a consessum in this case. The record thus discloses one of those instances of more or less embarrassment to the administration of justice, occasioned by the failure of the parties to put into the case material facts well known to themselves and conceded, either by oversight or upon the assumption that they are within the knowledge of the court.

For the extent to which the Legislature has seen fit to exercise its acknowledged power of regulation over such corporations resort to implication or doubtful expressions is unnecessary. On this subject, the terms of the act creating the Commission and defining its powers are clear and distinct. Section 3 confers jurisdiction over gas companies, electric lighting companies, and municipalities furnishing gas or electricity for lighting, heating, or power purposes. Section 6 expressly forbids the collection or receipt from any person, firm, or corporation of a greater or less compensation for any service rendered or to be rendered than it charges, demands, collects, or receives from any other person, firm, or corporation, for doing a like and contemporaneous service under the same or substantially similar circumstances and conditions. Section 7 inhibits the allowance by any public service corporation of any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular character of traffic or service, in any respect whatsoever. Section 4 says: "All charges, tolls, fares and rates shall be just and reasonable." To enable the Commission to effectuate the policy thus declared, section 5 expressly authorizes and empowers it to "change any intrastate rate, charge or toll which...