West Virginia Water Service Co. v. Cunningham, CC835

• Decision Date: 02 July 1957
• Docket Number: No. CC835,CC835
• Citation: 98 S.E.2d 891,143 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA WATER SERVICE COMPANY v. I. V. CUNNINGHAM, Doing Business as Mountain State Construction Company.

Page 891

98 S.E.2d 891

143 W.Va. 1

WEST VIRGINIA WATER SERVICE COMPANY v. I. V. CUNNINGHAM, Doing Business as Mountain State

Construction Company.

No. CC835.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1957.

Decided July 2, 1957.

Syllabus by the Court.

1. "Under the police power of the State, the Legislature has the power to provide for the protection of the safety, health, morals, and general welfare of the public, and may delegate such powers to municipalities created by it.' Pt. 1 Syl., Hayes v. The Town of Cedar Grove, 126 W. Va. 828', Pt. 6 Syl. [30 S.E.2d 726, 156 A.L.R. 702]; State ex rel. Bibb v. Chambers, Mayor, etc., 138 W.Va. 701 .

2. Chapter 25, Acts of the Legislature, First Extraordinary Session, 1933, delegating to municipal corporations the power by ordinance to create sanitary boards and authorizing such sanitary boards to enter into contracts for the construction of sewage systems, is a valid exercise of the police power of the State.

3. An ordinance of a municipal corporation, creating a sanitary board and authorizing such sanitary board to enter into contracts for the construction of a sewage system, is within the police power of the State delegated to municipalities by Chapter 25, Acts of the Legislature, First Extraordinary Session, 1933, and is valid.

4. A contract between a municipal sanitary board and a contractor, providing for the construction, in whole or in part, of a sanitary sewage system, entered into with the sanitary board in pursuance of a valid ordinance of a municipal corporation, is valid; and where such contract provides inter alia that 'Existing surface, overhead or subsurface structures damaged or destroyed by reason of the Contractor's operations shall be promptly repaired or replaced in a satisfactory manner at the cost and expense of the Contractor', and the contractor by job order requests enters into a contract with an existing water company to remove certain of the latter's water pipes which interfere with the construction of said sewage system, such contractor in a notice of motion for judgment proceeding, instituted by the water company, shall be liable for the expense so incurred.

5. "The test of the relation between one having work done and the workman consists in the employer's right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor.' Greaser v. Appaline Oil Company, 109 W.Va. 396 . The right to control, and not the exercise of control, is the test.' Meyn v. Dulaney-Miller Auto Company, et al., Pt. 2 Syl., 118 W. Va. 545 .

6. In a certified case this Court will not consider certified questions not necessary to a decision of the case.

McClintic, James, Wise & Dadisman, J. H. McClintic, Stanley E. Dadisman, Charleston, for plaintiff.

Amos, Brotherton & Keightley, Charleston, for defendant.

Palmer & Elkins and J. Campbell Palmer, III, Charleston, for insurance carrier of defendant, as amicus curiae.

RILEY, President.

This notice of motion for judgment proceeding was instituted in the Circuit Court of Kanawha County by West Virginia Water Service Company, a corporation, against I. V. Cunningham, doing business as Mountain State Construction Company, to recover on contract in the amount of four thousand nine hundred and thirty-eight dollars and eighteen cents, based upon job order requests for the West Virginia Water Service Company to move certain of its main lines and facilities out of defendant's way at Kanawha Boulevard, Hunt Avenue, Fitzgerald Street, Vine Street and Park Street in the City of Charleston, in which proceeding the circuit court overruled plaintiff's demurrer to defendant's third special plea, and in doing so, evidently because of the importance of the questions involved, certified to this Court, on its own motion, four questions of law arising upon the pleadings.

For convenience, the West Virginia Water Service Company, a corporation, will at times hereinafter be referred to as the 'water Company'; The Sanitary Board of the City of Charleston as the 'sanitary board'; and I. V. Cunningham, doing business as Mountain State Construction as the 'construction company'.

In overruling the demurrer to defendant's third special plea, as disclosed by the opinion of the court, the circuit court held, in effect, that the defendant enjoyed the immunities of the City of Charleston, and was not legally liable on the contract, as set forth in the notice of motion for judgment and affidavit.

The statute creating The Sanitary Board of the City of Charleston, which is contained in Chapter 25, Acts of the Legislature, First Extraordinary Session, 1933, as amended, has been inserted in 1 Michie's West Virginia Code, 1955, Anno., in Article 13, Chapter 16. Pursuant to the provisions of this statute, the Council of the City of Charleston adopted an ordinance on March 17, 1952, made a part of the pleadings and inserted in the record by defendant's third special plea, which purported to create The Sanitary Board of the City of Charleston, and gave and delegated to that board supervision and control over the 'construction, acquisition, improvement, equipment, custody, operation, maintenance and administration of all works for the collection, treatment and disposal of sewage within the City of Charleston.'

Under Section 17 of Chapter 25, Acts of the Legislature, First Extraordinary Session, 1933, it is provided that:

'The municipality shall be subject to the same charges and rates established as hereinbefore provided, or to charges and rates established in harmony therewith, for service rendered the municipality, and shall pay such rates or charges when due from corporate funds and the same shall be deemed to be a part of the revenues of the works as herein defined, and be applied as herein provided for the application of such revenues.'

Defendant's third special plea to plaintiff's notice of motion for judgment and affidavit pleads that the defendant was 'acting for and on behalf of the Sanitary Board of the City of Charleston, * * * under a contract for the construction of * * * a sanitary sewer system'; that the defendant, as such contractor 'was and is clothed with the same immunities with which a municipal corporation is clothed'; and that the water company 'is operating within the territorial limits of the said City of Charleston under a franchise granted by said City of Charleston and as such must remove, relocate, and change its properties without compensation, either directly or indirectly, from the said City of Charleston or its agents, or those working for and on behalf of said City of Charleston, or its agents, when said removal, relocation or replacement is made necessary by proper governmental improvement, * * * plaintiff has no right against the defendant, who was acting under a contract * * * for and on behalf of an agent of said City of Charleston, to-wit, The Sanitary Board of the City of Charleston, an instrumentality of said City of Charleston.'

Plaintiff's demurrer to defendant's third special plea asserts that the plea is not sufficient in law for the following reasons: (1) Defendant is an independent contractor and is not, as a matter of law, clothed with governmental immunities; (2) The Sanitary Board, constructing and operating a self-supporting sewage treatment and disposal system, is a public utility, and, as a matter of law, is not clothed with governmental immunities; and (3) the defendant, as an independent contractor, is liable on his contract with plaintiff for expenses incurred by plaintiff in moving, relocating and repairing its water mains and lines.

In overruling the demurrer to defendant's third special plea, the Circuit Court of Kanawha County certified to this Court the following questions:

'1. Is the Sanitary Board of The City of Charleston, which is engaged in the construction and operation of a self-supporting sewage treatment and disposal system, clothed with the governmental immunities with which The City of Charleston is clothed?

'2. Is defendant, a contractor under contract of February 15, 1954, with The Sanitary Board of The City of Charleston, for construction of said sewage treatment and disposal system, entitled to the governmental immunities of The City of Charleston incident to said construction project?

'3. In the construction and operation of the self-supporting sewage treatment and disposal system, is The Sanitary Board of the City of Charleston acting in a governmental or in a proprietary capacity?

'4. Under the provisions of the statutes here involved and the contract of February 15, 1954, as specially pleaded, is the defendant contractor required to pay costs incurred by plaintiff incident to plaintiff's relocation of its public service facilities resulting from defendant's construction of said sewage treatment and disposal system?'

The pertinent provisions of the contract of February 15,...