83 W. Va. 718 | W. Va. | 1919
Lead Opinion
In July, 1918, the West Virginia Water and Electric Company, a public service corporation supplying water to the inhabitants of the city of Charleston and the town of South Charleston, made application • to the Public Service Commission for authority to increase its rates. A protest was made by the city of Charleston on behalf of itself and the citizens of said city against the allowance of such increase, upon the.grounds that the applicant was not furnishing an adequate supply of water for the purpose of fire protection, as required by its franchise, nor was the said applicant furnishing an adequate supply of pure wholesome water for consumption by the inhabitants thereof, as required by the terms of said franchise, but on the other hand alleged that the water being furnished by the said applicant was not only entirely inadequate to meet the needs of said city and its inhabitants, but was so impure and unwholesome that one or more severe disease epidemics had resulted from its use.
After extended hearings, the Commission on the 20th of November, 1918, entered an order finding as matter of fact that the applicant had been grossly derelict in its duty to the public, and that it had not made reasonable effort to comply with its public duty, but further found that the applicant had begun and was rapidly completing certain improvements and extensions to its plant which would make it adequate for the present needs of the city and its inhabitants, and that until the completion of these improvements certain temporary arrangements had been effected which in a large measure relieved against the complaint of shortage of water supplied, as well as the complaint of the impurity thereof; and further found that from the evidence then before the Commission, and the reports of its officers
The Commission urges that this court is without jurisdiction to suspend such order, for the reason that it is only a temporary and interlocutory one, and that the jurisdiction of this court to prohibit the execution of the Commission’s orders only goes to such orders as are final,, and relies upon the case of City of Bluefield v. Bluefield Water Works & Improvement Company, 81 W. Va. 201, in support of this
If, as contended, this Court is without jurisdiction to review such an order of the Commission as is involved here, that will end the ease. It'is true we held in the Bluefield case, above cited, that orders of the Public Service Commission valuing the property of and fixing the rates to be charged by a public service corporation for experimental purposes, and retaining the ease for future action after the result of such experiments is ascertained, are not final orders subject to be controlled by this Court. In attempting to apply the conclusion reached in that case we must consider the language used in connection with the facts involved in the controversy. There an increase in the rates had been granted by an experimental order, and neither the city nor any of the inhabitants were complaining of the increase allowed, but the water company was complaining that the increase allowed it was not sufficient, and it was determined that that order -would not be reviewed. The discussion indulged in in the opinion discloses that this conclusion was based largely on the ground that the order was a proper one, and it can reasonably be drawn from that opinion that the court would have exercised jurisdiction if it had reached the conclusion that the order involved was unreasonable. It is true § .16 of the Public Service Commission Act provides for invoking the jurisdiction of this Court to review an order of the Public Service Commission by any party feeling aggrieved by a final order thereof. In what sense did the Legislature use the word final in that statute? Of course, if we say that the word final there means the last order in the ease, or the order disposing of it finally, then
83 W. Va.
The question then is, is the order justified by the findings of the Commission? We have recited at some length its findings of fact. It is true the Commission finds as a fact that the applicant water company has not performed its public duty. It finds also as a fact that the applicant has, and had at the time of the entry of the order, temporarily provided means for overcoming to a great extent its failures of the past, and that it then had under construction improvements and extensions which would -fully meet the wants of the public served by it. It further found as a fact that the return received by the applicant for the service it actually rendered, even though the same was inadequate and insufficient, was not a proper and just return upon the investment that was actually devoted to furnishing that service. Just what changes would be necessary in order to make this return adequate and sufficient the Commission was unable to say, but it finds as a matter of fact that an increase of twenty per cent, in the rates then being received Avould not be more than the applicant was entitled to; it might be less. It might be that if this order purported to permanently adjust the rates for the applicant, it would be improper for the purpose. Confessedly it is but an estimate or approximation of the proper thing to be done in order that immediate relief may be furnished. It is quite well recognized by the courts that in granting relief against such experimental orders as this the courts will not interfere to set them aside except upon a showing that they will work a substantial hardship to the party complaining. Knoxville v. Water Co., 212 U. S. 1; Des Moines Gas Co. v. Des Moines, 238 U. S. 153. If the findings of fact by the Commission are to be relied upon, and counsel in argument do not question
Our conclusion is therefore to refuse to suspend the order complained of.
Concurrence Opinion
(concurring):
I concur in denying the relief sought by petitioner, but not for the reasons given in the majority opinion. I am unable to distinguish this ease from the City of Bluefield v. Bluefield Water Works & Improvement Company, 81 W. Va. 201, either in the material facts involved or in the principles of law applicable thereto. In the Bluefield case the water company it is true had been allowed a temporary increase in rates, and it complained because it had not been allowed greater rates and contended that the rates allowed were confiscatory, and that it had been deprived of its property without due process of law, contrary to the Federal Constitution. In the case at bar the water company was allowed a temporary or experimental increase of rates, and the city on behalf of its citizens is asserting a violation of the same provisions of the Constitution, because the order requires of the city and its citizens the payment of rates in advance of the contract rates which amounts to the'taking of their property -without due process of law. So that the only distinction to be drawn between the two cases is simply the fact
I am, therefore, unwilling to be marched up hill and then right down again -without any good reason therefor, and I see none in the present case. I think the opinion of the court takes too comprehensive a view of the authority conferred upon this court by the act creating the Public Service Commission. We held in United Fuel Gas Company v. Public Service Commission, 73 W. Va. 571, that the jurisdiction of this court conferred by section 16 of said act was limited to matters purely judicial and does not extend to matters purely administrative, executive or legislative, such jurisdiction not being conferred by the Constitution. And the Bluefield case, using the very words of the statute, limits our jurisdiction so far as conferred by the statute to final orders. The court, by what appears to me to be a very strained effort, proposes to extend that jurisdiction to one which would enable us in all eases to supervise and control the commission at every step in the course of its progress in the administration of the law, and before it had reached a final judgment, A final judgment, as we have decided, .is not subject to review by us until it is beyond the power which the commission may constitutionally exercise, or beyond its statutory power, or based upon a mistake of law. United Fuel Gas Company v. Public Service Commission, supra, syllabus point 3. And this was the construction given like provisions of the act creating the Interstate Commerce Commission, from which our statute to a large extent was drawn, by the Supreme Court of the United States.
Now, I think it fair to assume that where the Legislature said “final order,” it had some reference to the meaning of these words as understood and defined in our decisions and as used in other statutes limiting our jurisdiction. With respect to the order under review, the commission, on a motion for a rehearing addressed to it by the petitioner, denied the' motion on the specific ground that its order was purely temporary, and because it found after taking a vast
Suspension of order refused.