State ex rel. Croy v. Bluefield Waterworks & Imp. Co.

• Decision Date: 27 April 1920
• Docket Number: 4083.
• Citation: 103 S.E. 340,86 W.Va. 260
• Parties: STATE EX REL. CROY v. BLUEFIELD WATERWORKS & IMPROVEMENT CO.
• Court: West Virginia Supreme Court

103 S.E. 340

86 W.Va. 260

STATE EX REL. CROY v. BLUEFIELD WATERWORKS & IMPROVEMENT CO.

No. 4083.

Supreme Court of Appeals of West Virginia.

April 27, 1920

Submitted April 21, 1920.

Syllabus by the Court.

Whether rules, regulations, and practices of a public service corporation subject to the provisions of chapter 15 o, Code 1918 (Code 1913 and Code Supp. 1918) adopted by the company to govern its dealings with its patrons, are unreasonable or unduly discriminatory, are questions primarily within the competency of the Public Service Commission, and not subject to judicial supervision until that body has had an opportunity to exert its delegated administrative functions.

Writ of mandamus sought by a patron of a public service corporation and averring discriminatory rules and practices by the latter, denied because the matter had not first been submitted to the Public Service Commission.

Ritz J., dissenting.

Original proceedings in mandamus by the State, on the relation of Wm H. Croy, against the Bluefield Waterworks & Improvement Company. Writ denied.

Russell S. Ritz, of Bluefield, for relator.

A. G. Fox and Sanders & Crockett, all of Bluefield, for respondent.

LYNCH J.

In this proceeding petitioner William H. Croy, a citizen and resident of the city of Bluefield, seeks a writ of mandamus to compel the Bluefield Waterworks & Improvement Company, a corporation engaged in the service of the public, to furnish water for use on his premises. Desiring to avail himself of such service, petitioner heretofore made application therefor to the company, and the latter thereupon provided and installed a meter in front of and near his property line; the connection between the company's mains and fixtures and petitioner's service line to be made by him. For the purpose of making such connection, he employed Eugene E. Keith, a licensed plumber of the city of Bluefield, who performed the work apparently in a satisfactory manner; at least, there is no complaint of its efficiency for all purposes. But because he was not a plumber specially licensed by the respondent to perform such work, the latter declined and refused to turn its water into petitioner's line; wherefore he prayed for and obtained this alternative writ requiring the company to perform that service.

The chief ground relied on in support of the writ is the alleged unreasonable and discriminatory nature of respondent's rules, upon which it based its refusal to do the act complained of, which prohibit any one other than an authorized employé of the company or a plumber specially licensed by it, as provided in rule 55, to perform such work, and authorize its officers and agents to refuse to furnish the water to any consumer who engages a plumber not so employed or licensed.

Whatever may be the proper view and decision upon the merits of the question so presented, we are of opinion that the reasonableness or unreasonableness of the rules just referred to should first be submitted to the Public Service Commission for investigation and determination. The purpose of the act creating that body and subjecting to its jurisdiction and control all public service corporations therein designated was to provide prompt, adequate, and efficient supervision and regulation of the functions and management of such utilities, in the interest both of the public and of the companies, and to safeguard each from unjust treatment by the other. The act recognizes and contemplates that the utilities affected, after the manner of businesses dealing generally with the public, will by proper rules and regulations define and specify the manner and method to be employed in their relations and dealings with patrons. In order to secure reasonable and uniform regulations and practices by such utilities in dispensing their service, section 7 of the act (chapter 15 o, Code 1918 [Code 1913, and Code Supp. 1918, c. 15 o]) makes it unlawful for any such company to make or give any undue or unreasonable preference or advantage to any particular person, firm, or corporation, or to subject them to any undue or unreasonable prejudice or disadvantage. Section 5 empowers the commission to investigate all methods and practices of utilities subject to the act and to change or prohibit any practice, device or method of service in order to prevent undue discrimination or favoritism. Section 21 authorizes the commission at any time to require companies subject thereto to furnish any information in their possession respecting rates, charges, or practices in conducting their service. And section 23 of the act specifically provides that--

"Whenever, under the provisions of this act, the commission shall find any regulations, measurements, practices, acts or service to be unjust, unreasonable, insufficient or unjustly discriminatory, or otherwise in violation of any provisions of this act, * * * the commission shall determine and declare, and by order fix, reasonable measurements, regulations, acts, practices or service, to be furnished, imposed, observed and followed in the state in lieu of those found to be unjust, unreasonable, insufficient or unjustly discriminatory, inadequate or otherwise in violation of this act; and shall make such other order respecting the same as shall be just and reasonable."

The purpose thus disclosed by the Legislature in enacting chapter 15 o of the Code was to create a supervisory and administrative body and invest it with some of its own supervisory authority, in order to exercise general regulatory power over such utilities. The provisions of the act clearly disclose an intention to submit to the determination of the commission questions relating to the reasonableness or unreasonableness of the rules and practices of the companies, and until that body acts there is no occasion or reason for interference or intervention by this court by its mandatory process.

The relation existing between the Supreme Court of the United States and the Interstate Commerce Commission is analogous in many respects to that between this court and the Public Service Commission, and rules of procedure adopted and followed in the one instance have persuasive influence in determining the propriety of the procedural course to be followed in the other, at least in the absence of other determinative factors. In B. & O. R. Co. v. Pitcairn Coal Co., 215 U.S. 481, 30 S.Ct. 164, 54 L.Ed. 292, the United States Supreme Court held that regulations by a carrier respecting the distribution of coal cars to shippers, alleged to be unreasonable and discriminatory, being primarily within the competency of the Interstate Commerce Commission, were not subject to judicial supervision until that body had properly been afforded an opportunity to exert its administrative functions. The rule requiring preliminary action to be taken by the body charged with such administrative functions was first announced in Texas, etc., Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, where the question in issue concerned the reasonableness of freight rates fixed by the carrier and included in its published tariffs. In the Pitcairn Coal Company Case this rule was extended to include not only questions respecting the reasonableness of rates, but also of rules and practices adopted and followed by the companies in their dealings with patrons. There, as here, the complainant sought by mandamus to avoid the inconvenience and business loss incident to an enforcement by the carrier of its rules respecting the distribution of cars; but the court reversed the judgment of the Circuit Court of Appeals awarding the writ (165 F. 113, 91 C.C.A. 147), and dismissed the petition. The principle there announced has been followed in subsequent cases involving the reasonableness or discriminatory nature of rules and regulations of carriers (Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.S. 304, 33 S.Ct. 938, 57 L.Ed. 1494; Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U.S. 456, 35 S.Ct. 896, 59 L. El. 1406), and also in cases raising other questions primarily within the administrative jurisdiction of the Interstate Commerce Commission (Robinson v. B. & O. R. Co., 222 U.S. 506, 32 S.Ct. 114, 56 L.Ed. 288, affirming 64 W.Va. 406, 63 S.E. 323; United States v. Pacific & Arctic, etc., Steamship Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Texas, etc., Ry. Co. v. American Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255. See, also, Skinner & Eddy Corporation v. United States, 249 U.S. 557, 562, 39 S.Ct. 375, 63 L.Ed. 772.

Petitioner insists, however, that under section 3, art. 8, of the state Constitution, giving to this court original jurisdiction in cases of mandamus, we have no authority to compel him first to submit his claim to the Public Service Commission. In this contention, however, he confuses the existence of jurisdiction and the exercise of such jurisdiction. That we possess original jurisdiction in mandamus proceedings is unquestioned; but it is also true that the award of that writ lies within the sound discretion of the court, where the right thereto is not clear, and where there is available another remedy specially designated for the ascertainment of the facts upon which the right depends and equally efficacious. The mere filing of a petition for such a writ does not ex proprio vigore entitle petitioner thereto. As an element in the exercise of that discretion, some regard must be had for the method of procedure intended by the Legislature to be followed in such cases and clearly disclosed by the Public Service Commission Act. The administrative body created by it is expressly...