State ex rel. City of Wheeling v. Renick

• Decision Date: 18 October 1960
• Docket Number: No. 12037,12037
• Citation: 116 S.E.2d 763,145 W.Va. 640
• Court: West Virginia Supreme Court
• Parties: , 36 P.U.R.3d 365 STATE ex rel. CITY OF WHEELING, etc. v. Myron R. RENICK et al., Members of the Public Service Commission of West Virginia, and J. & J. Land Company, a Corporation.

Page 763

116 S.E.2d 763

145 W.Va. 640, 36 P.U.R.3d 365

STATE ex rel. CITY OF WHEELING, etc. v. Myron R. RENICK et al., Members of the Public Service Commission of West Virginia, and J. & J. Land Company, a Corporation.

No. 12037.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1960.

Decided Oct. 18, 1960.

Syllabus by the Court

1. Repeal of a statute by implication is not favored in law.

2. To repeal a statute by implication there must be such positive repugnancy between the provisions of the new statute and the old statute that they can not stand together or be consistently reconciled.

3. A statute which revises the whole subject matter of a former statute and which is evidently intended by the Legislature as a substitute for such former statute, although it contains no express words to that effect, operates to repeal the former statute.

4. 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.

5. 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.

6. The public service commission has the statutory power and authority to control the facilities, charges and services of all public utilities and to hear and determine the complaints of persons entitled to the services which such utilities afford; and the only limitation upon such power and authority is that the requirements shall not be contrary to law and that they shall be just and fair, just and reasonable, and just and proper.

7. The public service commission has jurisdiction to supervise and regulate the municipal sewer system of the City of Wheeling and in the exercise of such jurisdiction to hear and determine a complaint involved in a pending proceeding against the city relating to extension of the facilities and services of its sewer system.

George G. Bailey, Carl G. Bachmann, Wheeling, for relator.

Robert L. Stewart, Charleston, Charles P. Mead, Wheeling, for respondents.

HAYMOND, Judge.

The petitioner, The City of Wheeling, a municipal corporation, instituted this original proceeding in this Court to obtain a writ to prohibit the defendants, Myron R. Renick, Hillis Townsend and Thaddeus D. Kauffelt, members of the Public Service Commission of West Virginia, from entertaining and exercising jurisdiction to hear and determine a certain proceeding now pending before the commission based upon the complaint of the defendant, J. & J. Land Company, a corporation, against The City of Wheeling and to prohibit that defendant from the further prosecution of the proceeding before the commission. In that proceeding the complainant prays that the commission require The City of Wheeling to construct an eight inch sewer line for a distance of 1050 feet from a location in a subdivision owned by that company in the City of Wheeling to connect with the sewer system owned and operated by the city and, in the alternative, that the commission promulgate rules and regulations relating to sewer systems which operate under certificates of convenience and necessity granted by the commission and which charge rates for services under orders of the commission pertaining to the extension of such systems to real estate subdivisions or other locations.

Upon the petition and the exhibits filed with it this Court, on June 6, 1960, issued a rule against the defendants returnable September 7, 1960, at which time this proceeding was submitted for decision upon the separate demurrer and the separate answer and exhibits of the defendants, Myron R. Renick, Hillis Townsend and Thaddeus D. Kauffelt, members of the commission, the separate answer and exhibits of the defendant, J. & J. Land Company, the written briefs and the oral arguments in behalf of the respective parties, and the written brief of the City of Charleston as amicus curiae which this Court permitted to be filed in this proceeding.

To the complaint filed before the commission on February 27, 1960, the city filed its answer in which it denied the jurisdiction of the commission to hear and determine the complaint. A hearing was held and evidence was taken upon the complaint and the answer before the commission on April 20, 1960. At the hearing the city moved the commission to dismiss the complaint on the ground that the commission was without jurisdiction to consider the subject matter and to hear and determine the complaint. By order entered April 29, 1960, the commission denied the motion to dismiss and, as a result of that ruling, the petitioner instituted this original proceeding in this Court.

The petitioner, The City of Wheeling, is the owner and operator of a municipal sewer system which serves inhabitants of that city numbering more than twenty five customers other than its owner. On June 25, 1954, it filed with the commission an application for a certificate of convenience and necessity and for approval of the rates established by it for the services furnished by the sewer system. By order entered August 31, 1954, it was granted the certificate for which it applied and was authorized to establish its rates and charges as set forth in the order of the commission. Subsequently in 1957, 1958 and 1959, it applied for authority to increase its rates and charges for its services and in each instance authority to do so was granted by separate orders of the commission. The city is operating its sewer system under and by virtue of the provisions of Article 13, Chapter 16, Code, 1931, as amended, and it has complied with the applicable provisions of that statute. Its council has adopted two ordinances, dated November 24, 1953, and May 25, 1954, which created a sanitary board of the city and authorized the city to construct, operate and maintain its sewer system, to issue revenue bonds, to establish rates, and to prescribe rules and regulations governing the services furnished and the facilities used in the operation of the system. On March 25, 1954, the board adopted such rules and regulations and they are now in force and effect. The estimated cost of the system was $7,500,000.00 and the system has been approved by the State Water Commission and by the State Department of Health.

The defendant, J. & J. Land Company, is the owner of a tract of land containing approximately 27.471 acres, located within the corporate limits of the City of Wheeling, and is engaged in the development of its tract of land as a subdivision of lots to be used and occupied for residential purposes. In the development of the subdivision it is necessary to construct sewer lines in the subdivision to connect with the sewer system of the city and after some unsatisfactory negotiations with the city authorities, and for the purpose of requiring the city to construct an eight inch sewer line for a distance of 1050 feet to connect with its sewer system, that company instituted the presently pending proceeding before the commission which is styled J. & J. Land Company, Case No. 5075.

The material facts as set forth in the pleadings in this proceeding are not disputed and the sole question for decision is whether the public service commission has jurisdiction to supervise and regulate the sewer system owned and operated by the city.

The petitioner contends that under the provisions of Article 13, Chapter 16, Code, 1931, as amended, with which it has fully complied in the construction, operation and maintenance of its sewer system, the city, acting through its sanitary board, has exclusive jurisdiction over its sewer system and that the public service commission has no jurisdiction to supervise or regulate the sewer system owned and operated by the petitioner. On the contrary the defendants insist that under the provisions of Section 1, Article 1, and Section 1, Article 2, Chapter 24, Code, 1931, as amended, the commission has jurisdiction to supervise and regulate a municipally owned and operated sewer system which serves more than twenty five customers other than its owner and that the provisions of Article 13, Chapter 16, Code, 1931, as amended, do not deprive the commission of such jurisdiction or limit or impair the exercise of such jurisdiction by the commission.

Section 1, Article 1, Chapter 24, Code, 1931, as amended, to the extent here pertinent, declares that 'Except where a different meaning clearly appears from the context, the words 'public utility' when used in this chapter shall mean and include any person or persons, or association of persons, however associated, whether incorporated or not, including municipalities, engaged in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a public service.' These provisions of Section 1, which expressly define the term 'public utility', and state that it includes municipalities, constitute a sufficient grant of power to the public service commission to regulate the conduct of a city to the extent that it engages in conducting the business of a public utility in this State. Village of Bridgeport v. Public Service Commission, 125 W.Va. 342, 24 S.E.2d 285. It is clear that the sewer system is devoted to the service of the public and that it was constructed and is operated and maintained for that purpose. Because of the public character of the service which it furnishes the sewer system owned and operated by the city is a public utility within the meaning of the above quoted provisions of Section 1 of the statute.

Section 1, Article 2, Chapter 24, Code, 1931, as amended, expressly provides that 'The jurisdiction of the commission shall extend to all public utilities in this State, and shall include any utility engaged in any of the following public services: * * * sewer systems serving twenty-five or...