United Fuel Gas Co. v. Pub. Serv. Comm'n.

• Decision Date: 28 January 1914
• Citation: 73 W.Va. 571
• Parties: United Fuel Gas Company v. Public Service Commission.
• Court: West Virginia Supreme Court

73 W.Va. 571

United Fuel Gas Company

v.Public Service Commission.

Supreme Court of Appeals of West Virginia.

Submitted December 16, 1913.

Decided January 28, 1914.

1. Corporations Order of Public Service Commission Review Ex-

tent of Jurisdiction.

This court by section 16, chapter 9, Acts 1913, is given jurisdiction not by appeal, but as upon original process to review an order of the Public Service Commission created by said act, and such jurisdiction is limited to matters purely judicial and does not extend to matters purely administrative, executive or legislative, such jurisdiction not being conferred by the Constitution, (p. 576).

2. Same Constitutional Law Due Process Orders of Public Service

Commission Review.

This statute so construed is not void as depriving a public service corporation, without due process of law, of rights guaranteed to it by the state or federal Constitution. The process of such Public Service Commission provided in said act, with right thereby given to have a review of the order'or judgment of said Commission by this court, as to matters judicial involved therein, and as provided thereby, satisfying the requirement of due process and other constitutional rights protected by the Constitution. (p. 576).

3. Same Orders of Public Service Commission Conclusiveness on Re-

view.

Sections 5, 6 and 7 of said act, adapted to all kinds of public service corporations, are in substance sections 12, 2 and 3, of the Interstate Commerce Act, and as interpreted by the Supreme Court of the United States, with respect to orders and judgments of the Interstate Commerce Commission, the orders of the Public Service Commission are final and not subject to judicial interference on review by this court, unless "(1) beyond the power which it could constitutionally exercise; or (2) beyond its statutory power; or (3) based upon a mistake of law." (p. 582).

4. Same Public Service Commission Police Power.

The powers so conferred upon the Public Service Commission are within constitutional limitations, as an exercise by the State of its police power. (p. 584).

5. Gas Companies Contracts with Consumers.

Contracts of a natural gas company with consumers of natural gas for exclusive service for a term of years in consideration of reduced rates, constitute no lawful basis for discrimination in rates in favor of such contract consumers against other consumers when in other respects the service is rendered all under substantially the same cir !

cumstanees and conditions; and when the manifest object of such contracts is to monopolize the business of serving the public with natural gas. (p. 585).

0. Corporations Order of Public Service Commission Beview.

The judgment or order of the Public Service Commission in such cases on questions of expediency, and as to what is best for the public interests, is final and not reviewable by this court, (p. 585).

(Poffenbarger, Judge, concurring.)

Petition by the United Fuel Gas Company against the ! Public Service Commission.

Order of Suspension Refused.

Vinson & Thompson, McCorkle & Chilton, R. G. Altizer and Geo. M. Hoffheimer, for petitioner.

John B. Daish, Fred M. Livezey, and Frank Lively, Assistant Attorney General, for respondent.

Miller, President:

Upon the petition of the United Fuel Gas Company, pursuant to section 16 thereof, we are called upon for the first time to give construction to chapter 9, Acts of the Legislature of 1913, entitled "An Act to create a public service commission and to prescribe its powers and duties, and to prescribe penalties for the violation of the provisions of this act", in so for at least as the provisions thereof are applicable to the case now presented, and undertake to impose or confer jurisdiction on this court, original or appellate, in relation thereto.

Said section 16 provides: "Any party feeling aggrieved by the entry of a final order by the commission, affecting him j or it, may present his or its petition in writing to the supreme court of appeals, or to a judge thereof in vacation, within thirty days after the entry of such order, praying for the suspension of such final order. The applicant shall deliver a copy of such petition to the secretary of the commission before presenting the same to the court, or the judge. The court or judge shall fix a time for the hearing on the application, but such hearing shall not be held sooner than five days, unless by agreement of the parties, after its presentation, and notice of the time and place of such hearing shall be forthwith delivered to the secretary of the commission, so that the commission may be represented at such hearing by one or more of its members or by counsel. If the court or the judge after such hearing be of the opinion that a suspending order should issue, the court or the judge may require bond, upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner as are just and reasonable. The hearing of the matter shall take precedence over all other matters before the court except the correction of assessments. For such hearing the commission shall file with the clerk of said court all papers, documents, evidence and records or certified copies thereof as were before the commission at the hearing or investigation resulting in the entry of the order from which the petitioner appeals. The commission shall file with the court before the day fixed for the final hearing a written statement of its reasons for the entry of such order, and after arguments by counsel the court shall decide the matter in controversy as may seem to be just and right."

The petitioner complains of an order of the Commission pronounced against it on November 15, 1913, on three several complaints or petitions pending before it, and by agreement heard together, one of R. D. "Wylie, one of Floyd S. Chapman, and the other of the City of Huntington. The order of the Commission sufficiently discloses the grounds of complaint, substantially the same in all three petitions, so far as concerns our present inquiry, and the action of the Commission thereon as follows: "Upon consideration whereof the Public Service Commission is of the opinion

"First: That the United Fuel Gas Company is violating the law by maintaining in the City of Huntington two rates for natural gas for domestic purposes, one being a rate of 23 cents per 1000 cu. ft. less a discount of 2 cents per 1000 cu. ft. if paid on or before the 10th day of the month following that in which the gas is consumed, and another rate of 22 cents per 1000 cu. ft. less a discount of 2 cents per 1000 cu. ft. if paid on or before the 10th day of the month following that in which the gas is consumed, said latter rate be'ng given to those consumers who have entered into a written agreement with the United Fuel Gas Company for a period of five years, and it is therefore ordered by the Public Service Commission that the United Fuel Gas Company do cease and desist from a continuation of this practice in discriminating between the two classes of domestic consumers. Second; The Public Service Commission does not at this time pass on the question of reasonableness of the rates now charged by the United Fuel Gas Company except the Commission is of the opinion that the rate of 23 cents per 1000 cu. ft. less a discount of 2 cents per 1000 cu. ft. if paid on or before the 10th day of the month following that in which the gas is consumed, now charged to 'No contract consumers' is excessive and exorbitant and the United Fuel Gas Company is ordered to reduce their rates so that the maximum rate allowed this Company to charge any of its consumers will not exceed 22 cents per 1000 cu. ft. less a discount of 2 cents per 1000 cu. ft. if paid on or before the 10th day of the month following that in which the gas is consumed."

In its answer to the several complaints petitioner attempted to justify its alleged unlawful and unjust discrimination, on grounds justified by the statute, and its contracts with its customers, and a compromise decree in a suit brought against it by the City of Huntington.

In its written opinion or statement giving its reasons for the entry of the order complained of, filed with the papers in this court, as required by said section 16, it is said that "the Commission does not pass on the validity of the contracts at the time they were entered into if they were entered into prior to the time the Public Service Commission Law became effective", and it goes without saying that nothing was determined against the petitioner not covered by the terms of the order of which the petitioner complains.

In the petition presented here, grounded on the same facts alleged in its answers to the original complaints, it is charged that the order complained of was unwarranted and erroneous in the following particulars: "First: In finding that the charging of said two rates under the different circumstances and conditions above set forth, was unlawful and in ordering that your petitioner cease and desist so to do. Second: In finding that the rate charged by your petitioner for natural gas sold by it in said City of Huntington, for domestic purposes, of twenty-three cents per thousand cubic feet, with a discount of two cents per thousand for prompt payment of bills, was an excessive and exorbitant rate, and in ordering your petitioner to reduce the same to a less rate or charge. Third: In directing your petitioner to discriminate between its two said classes of patrons by furnishing gas to one of said classes upon no condition whatsoever at the same rate as that charged to the other of said classes on the express condition that the patrons of the latter class agree to purchase all gas used by them, for certain purposes, during a definite period of time. Fourth: In that said order of said Commission is unconstitutional and void. Fifth: In that said order of said Commission deprives your petitioner of property without due process of law and the...