Works v. Bluefield
| Decision Date | 07 March 1911 |
| Citation | 69 W.Va. 1 |
| Parties | Bluefield Water Works & Improvement Co. v. City op Bluefield. |
| Court | West Virginia Supreme Court |
Service.
In the absence of a delegation thereof by the legislature, express or necessarily implied, a municipal corporation has no power to regulate or control rates for public service, such as the furnishing of water, gas or electricity, or the terms and conditions of contracts therefor, otherwise than by contract with the corporation or person rendering such service, (p. 8).
Though such regulation is usually in the form of an ordinance, it is nevertheless contractual or administrative in character, and not enforceable by criminal penalties, except in those instances in which the legislature has delegated to the municipal corporation power and authority to enforce compliance therewith in that way. (p. 9).
Service Enforcement.
Authority in a municipal charter to pass all ordinances necessary to the execution of the powers vested in the city and such as may be deemed necessary and proper to conserve the health, comfort, happiness and convenience of its inhabitants, and enforce the same by reasonable fines and penalties, does not inelude power to regulate or control such public service rates and conditions otherwise than by contract, nor to enforce regulations so made by fines or criminal penalties, (p. 9).
Attempted enforcement of contractual regulations of public service, by criminal proceedings under an ordinance of a city, not authorized by legislative enactment to adopt such means of enforcement, may be enjoined, (p. 5).
(Bbannon, Judge, absent.)
Appeal from Circuit Court, Mercer County.
Bill by the Bluefield Waterworks & Improvement Company and others against the City of Bluefield and others. Decree of dismissal, and plaintiffs appeal.
Reversed and Rendered.
A. W. Reynolds and Sanders & Crockett, for appellants. D. E. French and Ritz & Ritz, for appellees.
poffenbarger, judge:
The questions in this case arise out of the action of the circuit court of Mercer county, upon a bill in equity, filed by the Bluefield Water Works & Improvement Company and William McCarthy, agent of said company, to enjoin the City of Bluefield, its officers, agents and attorneys from enforcing, by criminal proceedings, a certain ordinance of the city, affecting property rights of said company and the conduct of its business. A preliminary injunction was awarded, and, later, upon a full hearing of the cause, the court dissolved the injunction and dismissed the bill.
The City of Bluefield seems to have been originally incorporated under chapter 47 of the Code. The Legislature, at the session of 1897, granted it a special charter, found in chapter 99 of the acts of that session. This was amended and re-enacted by chapter 3 of the Acts of 1905. Certain sections were again amended by chapter 2 of the Acts of 1907, and the entire charter was amended and re-enacted by chapter 1 of the Acts of 1909, The ordinance here complained of was passed on the 24th day of August, 1908, and the franchise of the Water Works Company is found in ordinances passed on the 20th day of January; 1891, and October 3, 1892. The franchise ordinance is very informal and incomplete. As first granted, it conferred upon the water company the right to construct and forever maintain its water works, pipes and mains through, beneath, over, across and along any and all of the streets, alleys and public grounds of the city, for the purpose of supplying and furnishing water to the city and the citizens and the property owners thereof for domestic and manufacturing purposes, and for all other purposes for which it should be desirable, for rent, lease, hire, sale and reward, upon any terms and conditions that, from time to time, might be agreed upon between the company, its successors and assigns, and the city and other patrons and customers. This ordinance did not affirmatively require the water works company to furnish water nor fix any maximum rate. Deeming it not sufficiently explicit and obligatory in these respects, the council amended it on the 3rd day of October, 1892, by the addition of four clauses, by the first and second of which it was made obligatory upon the water works company to furnish water to the town and the general public and all persons and corporations desiring it, to the extent of the company's ability so to do, at prices to be agreed on by it and the purchasers of water, provided the rate should not exceed the then existing rate for private consumers, whatever that means, and twenty-five cents per thousand gallons for consumers by meter. The third additional clause provided that the company should conduct its business of supplying the public with water in accordance with the ordinances of the town, theretofore or to be thereafter enacted so long as said company should operate its said business under the authority conferred on it by the ordinances of the town, except that the maximum rate to be charged for water as fixed by the ordinance, should not be changed without the consent of the company. The fourth clause approved and confirmed the powers conferred upon the company by the former ordinance, that of January 20, 1891. Under its franchise, as evidenced by these two ordinances, the water works company continued its business without any attempt on the part of the city to regulate or control the same, in respect to its contracts with citizens, from 1892 until 1908. Some of the rules and forms of contract adopted and enforced by it seem to have caused dissatisfaction and complaint. It required owners of property into which it carried water, to agree to pay the water rents, not only for water consumed by themselves, but also for that furnished to their tenants. Another rule required payment of three months' flat rate water rent in advance. Another required the customer or patron to bear the cost of putting in the pipes or fixtures from the property line to a certain point in the street. Another required any person causing the main to be tapped by a plumber not employed by the company itself, to give bond for any damages that might result from negligent or unskilful work, even though such plumber had a license from the city. The public dissatisfaction with these rules and regulations and others which need not be mentioned found its way into the city council, and, on the 24th day of August, 1908, that body passed an ordinance purporting to be a general rule or law for the government or regulation of persons, firms or corporations furnishing water in the city. It consists of two sections, the first of which lays down ten rules, only two of which are involved here, those designated "c" and "d". They read as follows: The second section is a penal clause providing for the enforcement of the regulations prescribed by section 1, and reads as follows: "Any person, firm or corporation, or the agent, representative or employee of any such person, firm or corporation violating any of the provisions of this ordinance shall, upon conviction thereof, be fined not less than one nor more than one hundred dollars for each offense."
Florence A. Harstock and H. J. Harstock had, on April 19, 1906, entered into a contract with the company for water to be furnished in certain property owned by them, and thereby agreed to pay all water bills at the company's office as they should become due, against both themselves and their tenants, according to the rules, regulations and rates as they then were or should thereafter be, and this contract was to remain in force until canceled by notice. The Harstocks neglected to pay some of the water rents and, while these rents were in arrears, J. L. Peters became their tenant of the property and demanded service from the water company. This it refused to furnish until the arrearages of rent should be paid and also until Peters would pay three months' water rent in advance. He tendered rent in advance for one month. William McCarthy, superintendent of the water works company, who, on its behalf, had declined to furnish water to Peters, was arrested and taken before the recorder of the city, charged with violation of the ordinance. He denied the validity of the ordinance, but was convicted and fined one hundred dollars, which he was required to pay as a condition of his appeal to the criminal court of the county. He was further informed that for each day he failed and refused to furnish the water, he would be fined one hundred dollars.
If the ordinance, for the enforcement of which the proceedings against the superintendent of the water works company were instituted, is invalid, in so far as it attempts to provide a remedy by fine, there can be no doubt about the jurisdiction by injunction. The object and direct effect of the criminal proceedings is to control the water works company in respect to the use of its property, and works a restraint thereon, affecting...
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