William R. Mcfeeters Et Als, Public Service Commission v. J.A. Parker, D/B/A Waterbury Center Water System

• Decision Date: 02 February 1943
• Citation: 30 A.2d 300,113 Vt. 139
• Parties: WILLIAM R. McFEETERS ET ALS, PUBLIC SERVICE COMMISSION v. J.A. PARKER, d/b/a WATERBURY CENTER WATER SYSTEM
• Court: Vermont Supreme Court

30 A.2d 300

113 Vt. 139

WILLIAM R. McFEETERS ET ALS, PUBLIC SERVICE COMMISSION v. J.A. PARKER, d/b/a WATERBURY CENTER WATER SYSTEM

Supreme Court of Vermont

February 2, 1943

January Term, 1943.

Constitutionality of Statutes Creating Public Service Commission.

1. Under P. L. Secs. 6054 and 448 members of the Public Service Commission are officials who may be removed by the Governor at any time without hearing.

2. The Constitution of Vermont does not prohibit the legislature from creating offices tenure of which shall be at the pleasure of the Governor.

3. The Public Service Commission is an agency of the Legislature and not a court in the strict sense.

4. Every presumption is to be made in favor of the constitutionality of a statute, and it is not to be adjudged unconstitutional without clear and irrefragable evidence that it infringes the paramount law.

5. The enforcement of orders of the Public Service Commission is left to the Supreme Court, to be carried out in accordance with law and equity.

6. The Public Service Commission is a body exercising special and statutory powers not according to the common law, and nothing will be presumed as to its jurisdiction.

7. Within the limits of its authority the jurisdiction of the Public Service Commission is exclusive, and may be reviewed only as authorized by statute.

8. In connection with decisions of the Public Service Commission the courts have power to prevent an abuse of discretion, to require that its powers be exercised according to law and in a manner not to injure property rights unjustly, to prevent the invasion of constitutional and statutory rights, and to insure a fair and adequate hearing.

9. If an appeal is taken from a decision of the Public Service Commission to the Supreme Court, the findings of the commission have the effect of reports of special masters in chancery, and the sufficiency of the evidence to support the findings may not be tested in mandamus proceedings.

10. Complaint that an order of the Public Service Commission is unreasonable is one which should be raised before the commission itself and by appeal if desired, and may not be raised in mandamus proceedings.

MANDAMUS to enforce order of the Public Service Commission. The respondent filed a motion to dismiss, a demurrer and an answer, and the relators filed a replication. Heard on motion to dismiss, demurrer and facts found by a commissioner appointed to hear testimony.

Let a writ of mandamus issue commanding this respondent, J. A. Parker, to forthwith fully comply with the terms of the order of the Public Service Commission, dated March 24, 1942, relative to furnishing water to the properties of Roland McNeil and Ralph Post. Let the relators recover their costs.

H. C. Shurtleff for the respondent.

Clifton G. Parker, Deputy Attorney General, for the relators.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This is a petition for a writ of mandamus to enforce an order of the public service commission. Upon March 24, 1942, after due hearing upon a petition of the attorney general, the commission found the following facts: J. A. Parker, the respondent, operates a water system serving territory around Waterbury Center and this system is a public utility. He obtained permission of the Commission to acquire the property and has since filed annual reports with the commission as required under the laws governing public utilities. The system extends to the premises of Mr. and Mrs. Roland McNeil and Mr. and Mrs. Ralph Post, which are on an extension from the main line of the system. Before November 1, 1941, the respondent delivered to each of the above named families notice that he would not furnish them water after that date. However, he did continue to furnish them water after that date and to collect rent as usual. These parties were paid up and in good standing. In February, 1942, after some minor interruptions which were not of long duration and which were repaired by the respondent, the service stopped. Notice was given to the respondent, but he refused to take any steps to find out what the cause was or to remedy it. He never applied to the commission for permission to discontinue this service. The system has an adequate supply of water even during dry years for all its customers. The respondent will have no financial difficulty in doing whatever is necessary to restore the service. If the water pipe for this service has to be entirely replaced the expense will not be over two hundred dollars. The Post premises are used as an advertised tourist stop and this water supply was necessary in order to obtain approval and license from the state board of health. The owners were obliged to turn away regular guests during February, 1942. The McNeil farm has been forced to draw water for stock and for family use. The commission finds that continuance of the service to these two families is necessary for the safety, convenience and accommodation of the public. Thereupon the commission ordered the respondent to forthwith furnish to such families such supply of water as had been furnished to them prior to September 23, 1941, under the terms and conditions set forth in his tariff on file with the commission, and that he should forthwith cause the pipe lines and other appliances necessary to bring such supply of water to the buildings of these families to be repaired, replaced and maintained in such a manner that the supply will be available at all times.

The respondent has filed a motion to dismiss, a demurrer and an answer, and the relators have filed a replication. The case was heard upon the motion to dismiss, the demurrer, and upon the facts as found by a commissioner appointed to hear the testimony.

The motion to dismiss and the demurrer, so far as briefed, raise the question that the members of the public service commission are disqualified, and the commission is constituted in violation of the Constitutions of Vermont and the United States, by reason of certain statutes, which taken together are contrary to Article 4 of Chapter I of our Constitution, providing that every person ought to obtain justice freely, completely and without denial; and Section 5 of Chapter II thereof, providing that the executive and judiciary departments shall be kept separate and distinct so that neither shall exercise the powers belonging to the other; and are a denial of the right of due process of law in violation of the Fourteenth Amendment of the Federal Constitution.

P. L. 6054 provides that the three members of the public service commission shall be appointed by the Governor with the advice and consent of the Senate, and that one member shall be appointed biennially for the term of six years. P. L. 448 provides: "The governor may remove any civil officer whose appointment devolves upon the governor in the first instance whether appointed by him or any of his predecessors, with or without the advice and consent of the senate, and appoint a suitable person to succeed such official, subject to removal in his discretion." We agree with the respondent that the latter section empowers the Governor solely in his discretion to remove all or any of the members of the public service commission without hearing. This conclusion is in accord with Eckloff v. District of Columbia, 135 U.S. 240, 10 S.Ct. 752, 34 L.Ed. 120. There a lieutenant of police was removed from office by the commissioners of the District of Columbia without written charges, notice or hearing. The statute empowered the commissioners "to abolish any office, to consolidate two or more offices, reduce the number of employees, remove from office and make appointments to any office under them authorized by law." The Court said: "If this were all the legislation, there would be no question, for the grant of a general power to remove carries with it the right to remove at any time or in any manner deemed best, with or without notice." See also Bailen v. Assessors of Chelsea, 241 Mass. 411, 135 N.E. 877; Attorney General v. Donahue, 169 Mass. 18, 47 N.E. 433; Commonwealth v. Harriman, 134 Mass. 314.

Taking the two sections of the Public Laws together, it may reasonably be said that notwithstanding the literal language and the form in which the six year clause is expressed, the intention of the Legislature as shown by the removal section was that members of the public service commission should hold office for six years unless sooner removed by the Governor, or putting the thought in another and clearer way, that they should hold their offices during the pleasure of the Governor, but in no event longer than six years. The difference between saying "for six years, but the governor may remove" and "during the pleasure of the Governor but not longer than six years", is a difference only in manner of expressing the same fundamental thought, which is that the term shall be an indeterminate and indefinite one not exceeding in any event the period of six years. Collison v. State, 39 Del. 460, 2 A.2d 97, 119 A.L.R. 1422; State ex rel. Little v. Mitchell, 50 Kan. 289, 33 P. 104, 20 L.R.A. 306; 43 Am Jur Public Officers, sec. 184.

The Legislature has the same unlimited power in regard to legislation which resides in the British parliament except as it is restrained by the State and Federal Constitutions. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several state legislatures, saving only such restrictions as are imposed by the Constitution of the United States or of the particular state in question. Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140, 142, 143, 62 Am Dec 625. As there is nothing in our ...