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THE LAW

BE IT ENACTED BY THE LEGISLATURE OF WEST VIRGINIA: (1)

Section 1. There shall be, and there is hereby created, a public service commission of West Virginia, (2) and by that name the commission may sue and be sued.

The public service commission shall consist of three members who shall be appointed by the governor with the advice and consent of the Senate, and who shall have and possess all the powers and duties provided in this chapter as hereby amended.

On or before the first day of June, one thousand nine hundred and fifteen the governor shall appoint three commissioners, who shall be citizens and residents of this state, one of whom shall be a lawyer of not less than ten years actụal experience at the bar. Said commission shall immediately enter upon their duties and hold office for two, four and six years, respectively, from the first day of June, one thousand nine hundred and fifteen, the term of each to be designated by the governor, but their successors shall be appointed for the term of six years each, except that any person appointed to fill a vacancy shall serve only for the term of the commissioner whom he succeeds.

The commissioners before entering upon their duties shall take, subscribe and file with the secretary of state the oath provided by section five of article four of the constitution.

The governor may remove any commissioner for incompetency, neglect of duty, gross immorality or malfeasance in office, giving such commissioner a copy of the charges against him, and an opportunity to be publicly heard in person or by counsel in his own defense, upon not less than ten days' notice. If such commissioner shall be removed, the governor shall file in the office of the secretary of state a complete statement of all the charges made against such commissioner, and his findings thereunder, together with a complete record of the proceedings; and his decision therein shall be final.

The governor shall annually designate one of the commissioners as chairman thereof.

EXPLANATORY (1). The law establishing the public service commission and defining its powers and duties, is contained in three Acts of the Legislature-Chapter 9 of the Acts of 1913, passed Feb. 21, 1913, and in effect May 21, 1913; Chapter 8, of Acts 1915 (regular session), passed Feb. 10, 1915, and in effect May 10, 1915; and Chapter 4 of the Acts of the second extraordinary session of 1915, passed May 24, 1915.

The Act of 1915 (regular session), is a general revision of the first Act, amending sections 1, 2, 3, 4, 5, 9, 10, 14, 15 and 22 thereof, and adding thereto sections 23 to 28, and "enlarging the powers and duties of said public service commission, prescribing additional penalties and giving the commission power to punish for contempt."

The Act of 1913, creating the commission, made it to consist of four members, and committed to it the administration of the Workmen's Compensation Fund. The Act of 1915 reduces the members of the commission from four to three, and removes from its jurisdiction the administration of the Wokrmen's Compensation Fund.

SCOPE OF THE LAW

(2) Since the decision of this court in Coal & Coke Railway Co. v. Conley, 67 W. Va. 129, the Act of 1913, creating the Public Service Commission, inaugurated a new system of regulating public service corporations, and that act must be read and interpreted along with chapter 41, Acts of 1907, and all other previous regulatory statutes, not repealed thereby, as in pari materia therewith, and as together constituting the law of the State regulating and controlling all public service corporations. Public Service Com. v. B. & O. R. R. Co., Bien. Rep. 1915-16, p. 111, 76 W. Va. 399.

McChord v. L. & N. Ry. Co. 183 U. S. 483, Coal & Coke Ry. Co. v. Conley 67 W. Va. 129.

The concurrent judgment of two of the commissioners shall be deemed the action of the commission when in session as a board, and no vacancy in the commission shall embarrass the right of the remaining commissioners to exercise all of the powers of the commission.

No person while in the employ or holding any official relation to any public service corporation subject to the provisions of this act, or holding any stocks or bonds thereof, or who is pecuniarily interested therein, shall enter upon the duties of or hold said office. Nor shall any of said commissioners be a candidate for or hold public office, or be a member of any political committee while acting as such commissioner; nor shall any commissioner or employee of said commission receive any pass, free transportation or other thing of value, either directly or indirectly, from any person, firm or corporation subject to the provision of this act. In case any of said commissioners shall become a candidate for any public office, or shall become a member of any political committee, his office as commissioner shall be ipso facto vacated.

The commission shall appoint a secretary, whose salary shall be not more than five thousand dollars per annum, and all fees and emoluments coming into his hands shall be turned into the state treasury, and such other employees as may be necessary to carry out the provisions of this act, and fix their compensation, who shall hold office during the pleasure of the commission. It shall be the duty of the secretary to keep a full and true record of all proceedings of the commission, to issue all necessary process, returns and notices, to keep all books, maps, documents and papers ordered filed by the commission, and all orders made by the commission or approved and confirmed by it and ordered to be filed; and shall be responsible to the commission for the safe custody and preservation of all such documents in this office. He may administer oaths in all parts of the state, so far as the exercise of such power is properly incidental to the performance of his duty or that of the commission.

Each of the commissioners shall receive a salary of six thousand dollars per annum, to be paid monthly. The general office shall be kept at the capital of the state, and kept open each working day between the hours of nine o'clock A. M., and five o'clock P. M., and in charge of the secretary or some other competent person. But hearings and the taking of evidence may be had at such times and places and in each particular case as the commission may designate.

The attorney general shall perform legal service under this act when required by the commission; provided, however, the commission in its discretion may employ counsel to look after legal matters of the commission, and fix his compensation, which shall be paid as other employees of the commission.

The terms of office of the public service commissioners now in office, or their successors, unless sooner terminated, shall cease and determine on the thirtyfirst day of May, one thousand nine hundred and fifteen.

Act W. Va. Feb. 22, 1913 (Laws 1913, c. 9), creating a State Public Service Commission and prescribing its powers, is not invalid as conferring on such commission legislative, executive, and judicial powers in violation of the state Constitution, but merely creates an agency for carrying out the legislative scheme with respect to public service corporations. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940.

Inters. Com. Com. v. Goodrich Trans. Co. 224 U. S. 194.

Act W. Va. Feb. 22, 1913 (Laws 1913, c. 9), relating to public service corporations and creating a Public Service Commission, is not subject to the objection that it authorizes the commission to take property without due process of law, in that it makes no provision for notice and hearing before the fixing of rates; that being a requirement of the state Constitution. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940.

Sec. 2. The commission shall prescribe the rules of procedure and for taking evidence in all matters that may come before it (3) and enter such orders as may be just and lawful.

In the investigations, preparations and hearings of cases, the commission may not be bound by the strict technical rules of pleading and evidence, but in that behalf it may exercise such discretion as will facilitate their efforts to understand and learn all the facts bearing upon the right and justice of the matters before them.

The commission shall have a seal bearing the following inscription: “The Public Service Commission of West Virginia.” The seal shall be affixed to all writs and authentications of copies of records and to such other instruments as the commission shall direct. All courts shall take judicial notice of said seal. (Acts of 1915, chap. 8.)

Sec. 3. The jurisdiction of the commission shall extend to and include

(a) Common carriers, (4) railroads, street railroads, express companies, sleeping car companies, freight lines, car companies, toll bridges, ferries and

(3) For rules of procedure, as adopted by the commission, see publication of "Rules of Practice and Procedure before the Public Service Commission,” as amended and revised July 1, 1918.

RAILROADS AS COMMON CARRIERS

(4) A railroad, acting under a charter as a common carrier, which operates a system of yard tracks and sidings connecting the different departments of a plant consisting of blast furnaces, rolling mills, steel works and tube mill with each other and with the trunk lines near it and performing the functions of moving cars to and from the customary places of loading and unloading, having all its stock owned by the officers of the tube company which it serves, and from which it leases about 672 miles of its track and operates the remainder, about 792 miles of track under contract with the said tube company, but owns its own locomotives and rolling stock, and which has no facilities for serving the general public and in fact serves but one other

industry and that only to the extent of about 2 per cent of its entire business, while technically a common carrier, is not a bona fide common carrier entitled to have its entire switching charges absorbed, but should be treated more in the nature of an industrial road, entitled to a reasonable and equitable arbitrary portion of the rate" charged by trunk lines. Bul. No. 41.

Industrial Railway Cases, 29 I. C. C. R. 212, 32 I. C. C. R. 129.
34 I. C. C. R. 596. Atchison Ry. Co. v. U. S. 232 U. S. 199.
Spotting Charge Case 34 I. C. Č. R. 609. Tap Line Cases, 212 U. S. 1.

Ordinarily, a branch line railroad built for the primary purpose of serving an industry under a common ownership, will be regarded as a plant facility, unless the contrary clearly appears notwithstanding such railroad may be a separate corporate entity and may have assumed the legal status of a common carrier. In such cases the operations of said road aside from its main acitivty is in the nature of a by-product and rates for such operations should be based upon the reasonable value of the service rendered without regard to the question of a return upon the value of the investment in the railroad alone. Re Winifrede R. R. Co. Bul. No. 36.

Under West Virginia law, a branch line of a railroad system, when constructed becomes an integral part of the system, and must be treated and controlled as such and not merely a segregated part of it. C. & O. Ry. Co. v Pub. Ser. Com. 242 U. S. 603.

JITNEYS AS COMMON CARRIERS

Under the Public Service Commission act, which requires every person, firm, or corporation engaged in a public service business to maintain adequate and suitable facilities, and to give reasonable, safe, and sufficient service without discrimination, and empowers the commission to enforce such facilities and service, the commission has the right to regulate and control the operation of jitneys which are common carriers of persons and engaged in a public service business. Charleston Int. R. R. Co. v. Smith. Bul No. 4, Bien. Rep. 1915-16, P. U. R. 1915-E-177.

Jitneys operated in the same portion of a city in which street cars are operated and in more remote parts where there are no car lines, maintaining regular routes, schedules and service carrying indiscriminately all persons desiring to ride, and charging a uniform fare, are common carriers of persons, and are also egaged in a public service business, within the operation of a statute extending the jurisdiction of the commission over common carriers of passengers and those engaged in any public service business, irrespective of whether the operators are a corporation, firm, or individual. Charleston Int. R. R. Co. v. Smith. Bul. No. 4, Bien Rep. 1915-16, P. U. R. 1915-E-177.

Gillingham v. Ohio River R. Co. 35 W. Va. 588, 1 Wyman Pub. Serv. Corp., Sec. 187, 160, Exparte Dickey (W. Va.) 93 S. E. 781.

The West Virginia Commission deemed it unwise or unnecessary to establish rules and regulations for the operation of jitneys in a city whose charter power in such respect was much broader than that of the Commission and had been exercised by the enactment of a comprehensive ordinance and which city could supervise and control jitneys more effectively than the commission. Charleston Int. R. R. Co. v. Smith. Bul. No. 4, Bien. Rep. 1915-16, P. U. R. 1915-E-177.

Hastings M. Co. v. C. H. M. & St. P. R. Co. 11 I. C. C. 675.

steam and other boats engaged in the transportation of freight or passengers; and

(b) Telegraph and telephone companies and pipe line companies for thə transportation of oil, gas or water; and

(c) Gas companies, electric lighting companies and municipalities furnishing gas, (5) or electricity (6) for lighting, heating or power purposes; and

(d) Hydro-electric companies for the generation and transmission of light, heat or power, and water companies and municipalities furnishing water; and

(e) All other public service corporations, and all persons, associations, corporations and agencies employed or engaged in any of the business hereinbefore enumerated.

The words “Public Service Corporation” used in this act shall include all persons, associations of persons, firms, corporations, municipalities and agencies en aged or employed in any business herein enumerated, or in any other public service business whether above enumerated or not, whether incorporated or not. (Acts of 1915, chap. 8.)

Sec. 4. . Every person, firm or corporation engaged in a public service business in this state, shall establish and maintain adequate and suitable facilities, (7)

GAS COMPANIESAS PUBLIC UTILITIES

(5) The term “Gas Companies" as used in act W. Va. Feb. 22, 1913 (Laws 1913, c. 9) relating to Public Service Corporations includes companies furnishing natural gas. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940.

ELECTRIC PLANT AS A PUBLIC UTILITY

(6). A corporation, organized under a charter authorizing only mining and sale of coal and the exercise of rights incidental to such business, but nevertheless engaged in the work of supplying from an electrical plant installed and maintained primarily for the operation, by electric power, of its mining machinery and the lighting of its stores, offices and tenement houses, electricity for lighting purposes, to practically all such persons resident within the incorporated town in which its stores and officers are located as apply for service at uniform rates of compensation, wiring their buildings for its use and furnishing them fixtures therefor, is not a public service corporation within the meaning of the public service corporation act, chap. 150, code of 1913. Winegrove v. White Oak Fuel Co., 1 An. Rep. 242, Reversed in Winegrove v. Public Serv. Com., 1 An. Rep. 255. Munn. v. Ill. 94 U. S. 113, Gas Co. v. Lowe & Butler, 52 W. Va. 662.

SERVICE-JURISDICTION OF COM. OVER FACILITIES FOR (7) The Public Service Commission Act (Code 1916, chap. 150), does not deny to public service corporations the common-law right to make regulations, nor vest such power in the public service commission, in the first instance; but said commission may, on finding such regulations unjust, unreasonable, insufficient, or unjustly discriminatory, annul them and substitute others for them. B. & O. R. R. Co. v. Public Service Com., P. U. R. 1918A-608, 94 S. E. (W. Va.) 545.

If a regulation prescribed by such corporation is just, reasonable and fair, under all the circumstances, the commission is without authority to annul it, even though it is discriminatory, if the discrimination it makes is not unjust and rests upon a classification of subjects based upon substantial differences in situation and circumstances. B. & O. R. R. Co. v. Public Service Com., P. U. R. 1918A-608, 94 S. E. (W. Va.) 545.

SERVICE-EXTENSION OF

The corporate authorities of a town are clearly within their rights in ordering a water company to place and erect lights and hydrants, and construct an extension of its services within territory wholly within the corporate limits of the town, where the franchise under which the utility is operated requires it to place lights and hydrants at such places as may be designated by the corporate authorities. Marlinton v. Marlinton Service Co., Bul. No. 3, P. U. R. 1915-E, 277.

The commission refused to order a utility to extend its water mains to applicants within the limits of the municipality where it appeared that some of the applicants were far apart and that the returns would not exceed one per cent of the investment including operating expenses and depreciation. S. Buckhannon v. Buck. L. & W. Co., Bul. No. 5, Bien. Rep. 1915-16, p. 186, P.U. R. 1915E-383.

SERVICE-LINES AND CONNECTIONS A water utility is not entitled to make a charge against the consumer for tapping its mains and laying lateral or service pipes from the mains to the curb or property line. S. Buckhannon v. Buck. L. & W. Co., 1 An. Rep. 185.

Pine Bluff Corp. v. Toney, 96 Ark. 345; 23 American and Eng. Anno. Cases, p. 546; Pocatello Water Co. v. Standley, 7 Idaho 155; Bothwell v. Consumer's Co., 17 Idaho 204; Int. Water Co. v. El Paso, 51 Tex. Civ. App. 321; Hatch v. Consumer's Co., 224 U. S. 148.

safety appliances or other suitable devices, and shall perform such service in respect thereto as shall be reasonable, safe and sufficient for the security and convenience of the public, and the safety and comfort of its employees, and in all respects just and fair, and without any unjust discrimination or preference.

It is the duty of a water company in furnishing reasonable, safe and sufficient service, to replace at its own cost, a service line which is too small to furnish a sufficient supply of water, with one which will give the consumer an adequate supply. S. Buckhannon v. Buck. L. & W. Co., 1 An. Rep. 185.

The lateral or service line leading from the main of a water utility to the property line of the consumer, is as much a part of its system as the mains lying in the streets. S. Buckhannon v. Buck. L. & W. Co., 1 An. Rep. 185.

When a company has performed its full duty in running the water to the curb, or property line, ready for the consumer, and in sufficient and reasonable quantities or volume, it has done all it is required to do in this respect, and the consumer will not be allowed to complain if faulty service is due to his own equipment. S. Buckhannon v. Buck. L. & W. Co., 1 An. Rep. 185.

A proposed rule of a water company permitting it to charge a fee for tapping mains in streets and laying laterals to consumer's property line was held unfair and unreasonable since such service should be performed by the company, and, as such a fee had not previously been charged, the adoption of the rule would result in discrimination against subsequent consumers. Re Gassaway Dev. Co., Bul. No. 2, Bien. Rep. 1915-16, p. 70, P. U. R. 1915D-551.

A water company having a franchise to use the streets for its mains and necessary equipment for furnishing water to a city and its inhabitants is without authority to charge a consumer entitled to water “ tapping fees? 'for the tapping of the mains in the street and for a service line leading from the main to the consumer's property line, since such service pipe is a part of the distribution system of a water company which is its duty to furnish, and the company only has the right to excavate and lay pipe lines in the street. S. Buckhannon v. Buck. L. & W. Co. Bul. No. 5; Bien. Rep. 1915-16, p. 186; P. U. R. 1915F-383.

Pine Bluff Corp. v. Toney, supra; Pocatello Water Co. v. Standley, supra; Bothwell v. Consumers' Co., supra; Hatch v. Consumers' Co., 17 Idaho 204, 224 U. S. 148; Int. Water Co., 112 S. W. (Texas) 816.

A water company charged with the duty of maintaining adequate facilities and rendering reasonable and sufficient service must enlarge the laterals at its own expense where they do not furnish a sufficient supply of water; but where the fault is with the equipment of the consumer, the company is not obliged to furnish an additional connection free of charge. S. Buckhannon v. Buck. L. & W. Co., Bul. No. 5; Bien. Rep. 1915-16, p. 186; P. U. R. 1915E-383.

A utility furnishing water to its citizens and inhabitants is bound to perform such reasonable service as is required for meeting the demand of the consumer, and where the consumer and the company are unable to agree as to the size of the tap or lateral, or the company refuses to perform such service as is "reasonable, safe and sufficient, and in all respects just and fair," the consumer by filing his complaint under the statute (sec. 11 of chap. 9 of the Acts of 1913) may have the matter investigated by the Public Service Commission. S. Buckhannon v. Buck. L. & W. Co. Bul. No. 5; Bien. Rep. 1915-16, p. 186; P. U. R. 1915E-383.

The consumer must pay the cost of renewing a connection originally too small to furnish an adequate supply of water which was put in in conformity to his order at his expense, and accepted and used by him, under the custom that formally obtained, requiring the consumer to pay for the connection since it was his duty to see that such connection was adequate and proper. S. Buckhannon v. Buck. L. & W. Co. Bul. No. 5; Bien Rep. 1915-16, p. 186; P. U. R. 1915E-383.

The commission will order that the cost of enlarging or replacing a connection to furnish an adequate supply be paid by the party at fault where it is clearly shown that the inadequacy was due to the fault of one of the parties. S. Buckhannon v. Buck. L. & W. Co., Bul. No. 5; Bien. Rep. 1915-16, p. 186; P. U. R. 1915E-383.

SERVICE-FACILITIES FOR Telephonic communication in this day and age is a necessity within the common law rule, the permitting of the installation in its depot of facilities for which is a duty which a railroad company owes to the public, and one which under our statute requiring a railroad company to provide reasonable adequate service, may be imposed upon it by this Commissioners. Re Marlinton & Academy Tel. Co. v. Ronceverte and Elkins Tel. Co., (memo. by Com.) 1 An. Rep. 267.

Burlington, Brighton & Wheatland Tel. Co. v. Chicago & Western Ry. Co., 4 W. R. C. R. 388.

SERVICE-SAFETY OF CONSTRUCTION The contention of a water company that an order of the corporate authorities requiring that it lay a water pipe on the bed of a river is unreasonable because such pipes would be carried out by the ice, is disproved by the fact that a private water company maintains a line so located. Marlinton v. Marlinton Service Co., Bul. No. 3; P. U. R. 1915E-277.

WATER SERVICE-FIRE PROTECTION A water utility should not be required to make extensive extensions for additional fire protection upon which it would receive a very small return, where the only evidence of the necessity for such service or the reasonableness of the demand therefor is the request of the municipal authorities. Bluefield v. Bluefield Water & Imp. Co. Bul. No. 31; 1917 An. Rep. 197; P. U. Ř. 1917E-22. Lukrawka v. Spring Valley Water Co. (Cal.) P. U. R. 1915B-331.

A water utility should be entitled to maintain at its own office rather than at the headquarters of a city fire department an electric switch for opening the valves connecting the high-pressure line with the mains of the company in case of fire, where the switch has been installed and main

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