Sec. 9. No person, firm or corporation subject to the provisions of this act shall modify, change, cancel or annul any rate, joint rate, fares, classifications, charge or rental except after thirty days' notice to the Commission and the public which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares or charges shall go into effect, unless a written protest is made by the public service commission in which case the proposed rate shall stand suspended until it is determined by the commission whether or not such proposed rate is just or reasonable. Provided, in lieu of the written protest, the commission may enter an order prohibiting such person, firm or corporation from putting such proposed new rate into effect pending the hearing and final decision of the matter and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time, and kept open to public inspection; provided, however, that the commission may, in its discretion, and for good cause shown, allow changes upon less time than the notice herein specified, or may modify the requirements of this section in respect to publishing, posting and filing of tariffs, either by particular instructions or by general order. Whenever there shall be filed with the commission any schedule stating a change in the rates fares or charges, or joint rates, fares or charges, or stating a new individual or joint rate, fare or charge or joint classification or any new individual or joint regulation or practice affecting any fare, rate or charge the commission shall have, and it is hereby given authority either upon complaint or upon its own initiative without complaint, (17) at once, and, if it so orders, without answer or other form of pleading by the interested parties, but upon reasonable notice to enter upon a hearing concerning the propriety of such rate, fare, charge, classification, regulation or practice; and pending such hearing and the decision thereon the commission upon filing with such schedule and delivering to the carrier or carriers or public service corporation affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, fare, charge, classification, regulation or practice, but not for a longer period than one hundred and twenty days beyond the time when such rate, fare, charge, classification, regulation or practice would otherwise go into effect; (18) and after full hearing, whether completed before or after the rate, charge, fare, classification, regulation, or practice goes into

POWER OF COMMISSION

(17) Under Act W. Va. Feb. 22, 1913 (Laws 1913, chap. 9) creating a Public Service Commission, such commission has power on its own motion to institute an inquiry into the reasonableness of gas rates, and on a finding that those charged are unreasonable to fix reasonable rates. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940.

Where a railroad carrier and a shipper in a rate discrimination proceeding each proposes a schedule of rates on certain commodities between certain points, based on a comparison with similar rates between other points, the commission is not bound to adopt one of the two schedules proposed but may draw its own conclusions from such comparison and fix any rate which is just and reasonable. Greer v. B. & O. R. R. Co. etc., Bul. No. 7; Bien. Rep. 1915-16, p. 145; P. U. R. 1916D286. Ripley R. R. Rates & Regulations, p. 36: Beale & Wyman R.R. Rate Reg., Sec. 840, 918; Jackman & Salt, Freight Rates, pp. 23, 37, 43; Geo. Tilson Mill Co. v. N. P. R. Co., 8 I. C. C. 354; Wickwire Steel Co., Case 30 I. C. C. 415; Crushed Stone Case, 30 I. C. C. 22.

Under sec. 9, chap. 8, Acts of 1915, W. Va., the commission is authorized to investigate and act upon a proposed individual or joint rate the same as in the case of a rate which has been effective. Greer v. B. & O. R. R. Co. etc., Bul. No. 7; Bien. Rep. 1915-16, p. 145; P. U. R. 1916D-286.

TARIFFS WHEN EFFECTIVE.

(18) Under the Public Service Commission law the joint tariff became an effective tariff. National Tube Co. v. Baltimore & Ohio R. R. Co., Bul. No. 42.

The order of the commission of November 20, 1916, striking the joint tariff from the files of the commission did not revive the former tariff. National Tube Co. v. Baltimore & Ohio R. R. Co., Bul. No. 42.

effect, the commission may make such order in reference to such rate, fare, charge, classification, regulation or practice as would be proper in a proceeding initiated after the rate, fare, charge, classification, regulation or practice had become effective; provided, that if any such hearing cannot be conducted within the period of suspension, as above stated, the commission may in its discretion extend the time of suspension for a further period, not exceeding six months. At any hearing involving a rate sought to be increased or involving the change of any fare, charge, classification, regulation or practice, after the passage of this act, the burden of proof to show that the increased rate or proposed increased rate, or the proposed change of fare, charge, classification, regulation or practice is just and reasonable shall be upon the public service corporation making application for such change. (19)

EVIDENCE-BURDEN OF PROOF

(19) In a suit in a federal court to enjoin the enforcement of gas rates fixed by a state commission, the complainant a sumes the burden of showing with reasonable certainty the invasion of rights affirmed or conferred by the Constitution or laws of the United States as the court cannot set up views it might have reached as to what ought to be done against the conclusions of the commission, which have a reasonable basis of support in the evidence. Manufacturers L. & H. Co. v. Ott 215 Fed. 940.

San Diego Land Co. v. Nat'l City, 174 U. S. 739; San Diego Land Co. v. Jasper, 198 U. S. 739; ex parte Young, 209 U. S. 123.

The burden is upon a water company to prove that a request for an extension of service, made in accordance with the provision of the company's franchise, is unjust and unreasonable, and it will be granted where there is nothing in the evidence to show that the rates to be received for such extension service are not fair and adequate, and the presumption is clear that, if the extension is made, additional business would be secured by the defendant company. Marlinton v. Marlinton Service Co., Bul. No. 3, P. U. R., 1915E-277.

That a railroad is obliged to carry through passengers from points on another railroad on through tickets at less than the statutory rate, due to competition of a shorter route over a third road, is not conclusive that the rate is non-compensatory and that the more passengers carried the greater the deficit, since the operating expense does not depend on the number of passengers carried, but is a fixed expense. Public Service Commission v. C. & O. Ry. Co., Bul. No. 12, Bien. Rep., 1915-16, p. 164, P. U. R., 1916E-353.

The burden of proof is upon the applicant to show that a proposed increased rate is just and reasonable, when this burden is not sustained by the evidence, the commission is not justified in granting an increase. Re Godfrey L. C bot, Bul. No. 33.

On the operator rests the burden of showing data from wh.ch to determine whether required service is in effect confiscatory. C. & O. Ry. Co. v. Public Service Commission, 75 W. Va. 100. The degree of proof required of a railroad seeking an increase beyond the 2 cent a mile passenger are, fixed by the West Virginia Act of 1907, is to show clearly, by evidence, that the 2 cent rate is confiscatory or unreasonable. Re C. & O. Ry. Co., Bul. No. 30, 1917 An. Rep. 240; P. U. R. 1917D

152.

St. L. & S. F. R. Co. v. Hadley, 168 Fed. 317; Exparte Young 209 U. S. 23; Knoxville v. Knoxville Water Co., 212 U. S. 1; Simpson v. Shepherd, 230 U. S. 352; Contra, Pa. R. Co. v. Phil. Co. 220 Pa. 100.

Evidence introduced by defendant company to the effect that it had advertised and canvassed its customers and sought in every way possible to have the no term consumers take advantage of the lower rate, and that 90% of its domestic consumers had availed themselves of the opportunity of taking the lower rate, is sufficient to convince the commission that the defendant has shown that a rate higher than that charged the contract consumers would be exhorbitant and excessive. Huntington v. United Fuel Gas Co., 1 An. Rep. 198.

Whether or not it was proven under the circumstances in a town the size of the one being served in this instance, which was already being served by a natural gas utility, to put in a competing plant at a much greater cost than the cost of the plant already operat d, must be resolved against the competing utility. Re Middlebourne Gas Co., Bul. No. 22; 1917 An. Rep. 109.

EVIDENCE-BEST AND SECONDARY

The opinion of witnesses as to what rates should be charged cannot be given very much weight unless they qualify as experts and show reasons for their conclusions. Huntington v. United Fuel Gas Co., 1 An. Rep. 198.

Opinion evidence that a 2-cent passenger fare applied to intrastate traffic is confiscatory, based upon data and methods of apportionment used by railroad witnesses, cannot prevail over a different conclusion reached from other data and methods which the commission deems reasonable. Re C. & O. Ry. Co., Bul. No. 30; 1917 An. Rep. 240; P. U. R. 1917 D-152.

In a suit to enjoin the enforcement of gas rates fixed by a state commission after a hearing, the court cannot consider exparte affidavits to supply the place of evidence which complainants had the opportunity to produce before the commission, but did not, and on such affidavits set aside the findings of the commission. Nor can it set aside such findings where on the evidence there is ground for difference of opinion among reasonable men. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940.

When in any case pending before the commission all evidence shall have been taken, and the hearing completed, the commission shall, within three months, render a decision in such case. (Acts of 1915, chap. 8.)

Sec. 10. The Commission shall have general supervision of all persons, firms or corporations having authority under any charter or franchise (20) of any city, town or municipality, county court, or tribunal in lieu thereof, or otherwise, to lay down and maintain-wires, pipes, conduits, ducts or other fixtures in, over or under streets, highways or public places. for the perpose of furnishing and distributing gas, or for furnishing and transmitting electricity for light, heat or power, or maintaining underground conduits, or ducts for electrical conductors, or for telegraph or telephone purposes, and for the purpose of furnishing water, either for domestic or power purposes and of oil and gas pipe lines.

The Commission may ascertain the quantity, healthfulness and quality of the water or quality and quantity of gas or electricity supplied by such persons, firms or corporations, and examine the methods employed, and shall have power to order such improvements as will best promote the public interests and preserve the public health.

The commission shall have power, through its members, inspectors, or employees to enter in, upon and to inspect the property, buildings, plants, fixtures, power houses and offices of any such persons, firms, corporations or municipalities, and shall have power to examine the books and affairs to be investigated by it, and shall have the power, either as a commission or by any of its members, to subpoena witnesses and take testimony and administer oaths to any witness in any proceeding or examination instituted before it or conducted by it in reference to any matter within its jurisdiction. The Commission shall, when and as necessary, appoint inspectors of gas, electric and water meters, whose duty it shall be when required to inspect, examine, prove and ascertain the accuracy of any gas, electric, or water meters used or intended to be used for measuring or ascertaining the quantity of gas, electricity or water furnished to, by or for the use of any person, firm or corporation, and when found to be correct, or made so, the inspector shall stamp or mark each of such meters with some suitable device, which device shall be recorded in the office of the commission. No person,

EVIDENCE-ABSENCE OF

The charge that a natural gas company is violating the laws of this state cannot be sustained n the aebsnce of any proof of the allegation. Follansbee v. Manufacturers L. & H. Co., Bul. No. 1; Bien Rep. 1915-16, p. 75, P. U. R. 1915D-825.

(20) Although a gas company has never procured a franchise to operate within a city, the West Virginia Commission has no jurisdiction to pass upon its rights to have its pipes in the street and to operate within the city, where, prior to the incorporation of the city. the county court had granted the predecessor of a subsidiary company the right to lay its pipes along the highways of the county, and the reality company owning the territory subsequently comprising the city had also granted to the subsidiary company the right to use its streets for the purpose of laying its pipes, and such subsidiary company had supplied gas to the territory. Follansbee v. Manufacturers L. & H. Co., Bul. No. 1; Bien. Rep. 1915-16, p. 75; P. U. R. 1915D-825.

The commission is not given authority to grant franchises, and consequently cannot annul them; nor is the commission given authority to grant certificates of convenience and necessity." Follansbee v. Manufacturers L. & H. Co., Bul. No. 1; Bien. Rep. 1915-16, p. 75; P. U. R. 1915D-825. The 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. 133, P. U. R. 1915E-177. Hastings M. Co. v. C. H. M. and St. P. R. Co., 11 I. C. C. 675.

Section 10 of the Public Service Commission Act, gives the commission power to order such improvements as will best promote the public interests and preserve the public health. Benwood v. Public Service Com. (Reasons for entering order) 1 An. Rep. 165.

170 U. S. 57; 105 Pac. 709; 109 Pac. 273.

firm or corporation shall furnish or put in use any gas, electric or water meter which shall not have been inspected, proved and stamped or marked by an inspector of the commission. Provided, that in cases of emergency, gas, electric or water meters may be installed and used before being inspected, but notice thereof shall be immediately given to the public service commission by the public service corporation installing the same, and such meter shall be inspected, proved and stamped or marked as soon thereafter as practicable. Every gas, electric and water company or corporation shall provide and keep in and upon its premises suitable and proper apparatus, to be approved and stamped or marked by the commission, for testing and proving the accuracy of gas, electric and water meters furnished for use by it and by which apparatus every meter may and shall be tested on the written request of the consumer to whom the same shall be furnished, and in his presence if he so desires.

If any person, firm or corporation to or by whom a meter has been furnished shall request the commission in writing to inspect such meter, the commission shall have the same inspected and tested. If the same on being tested shall be found to be two per cent from being correct, or to the prejudice of the user, the inspector shall order the owner of such meter forthwith to remove the same and to place instead thereof a correct meter, and the expense of such inspecting and testing shall be borne by the owner. If the meter, on being so tested, shall be found to be correct, or within two per cent of being correct, as above provided, the expense of such inspection and testing shall be borne by the user. A uniform charge and rule shall be fixed by the commission for this service.

Provided, that nothing in this act shall prevent the commission from changing and modifying the method of inspecting meters and adopting such rules and regulations therefor as to the commission may seem just and proper. (Acts of 1915, chap. 8.)

Sec. 11. Any person, firm, association of persons, public officer, public or private corporations, municipality or county, complaining of anything done or omitted to be done by any public service corporation subject to the provisions of this act, in contravention of the provisions thereof, or any duty owing by it, under the provisions of this act may present to the commission a petition which shall succinctly state all the facts; whereupon a statement of the charges thus made shall be forwarded by the commission to said public service corporation which shall be called upon to satisfy such complaint or to answer to the same in writing within a reasonable time to be specified by the commission. If such public service corporation within the time specified shall make reparation for the injury alleged to have been done, or correct the practice complained of and obey the law and discharge its duties in the premises, then it shall be relieved of liability to the complainant for the particular violation of the law or duty complained of. If such public service corporation shall not satisfy the complainant within the time specified, or there shall appear to be any reasonable ground to investigate the complaint, it shall be the duty of the commission to investigate the same in such manner and by such means as it shall deem proper. (Acts of 1913.)

Sec. 12. Every public service corporation, subject to the provisions of this act, shall file with the commission and keep open to public inspection, schedules, showing all the rates, fares, charges and tolls for service to be rendered by it or by other persons, firms or corporations in connection with it. Provided, however, that the reports and tariffs filed by interstate carriers with the public service commission may be copies of its report and tariffs filed with the interstate

commerce commission; but nothing herein shall preclude the public service commission from requiring interstate carriers to furnish information bearing upon any complaint or question pending before the said commission and with which it has a right to deal. (Acts of 1913, chap. 9.)

Sec. 13. In all hearings or proceedings before said commission the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing; and in case of disobedience to a subpoena or other process the commission or any party to the proceedings before the conmission, may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of papers, books and documents. And such court in case of refusal to obey the subpoena issued to any person or to any public service corporation subject to the provisions of this act, shall issue an order requiring such public service corporation or any person to appear before such commission and produce all books and papers, if so ordered, and give evidence touching the matter in question. Any failure to obey such order of the court may be punished by such court as contempt thereof. A claim that any such testimony or evidence may tend to criminate the person giving the same, shall not excuse such witness from testifying, but such witness shall not be prosecuted for any offense concerning which he is compelled hereunder to testify. (Acts of 1913, chap. 9.)

Sec. 14. The commission shall collect annually full and complete information of the value of all property owned and controlled by any person or public service corporation subject to the provisions of this act, and tabulate in statistical form and furnish the same to the board of public works on or before the first day of June in each year, which information shall be used by the said board of public works in fixing the value of the property of such person or public service corporation for assessment for the purpose of taxation as provided by law. (Acts of 1915, chap. 8.)

Sec. 15. There shall be paid by all public service corporations subject to the provisions of this act a special license fee in addition to those now required by law. Such fees shall be fixed by the auditor upon each of such public service corporations, according to the value of its property, as ascertained by the last preceding assessment, and shall be apportioned among such public service corporations upon the basis of such valuation, so as to produce a revenue of sixty thousand dollars per annum, or so much thereof as may be necessary, which shall be paid on or before the twentieth day of January in each year. Such sum of sixty thousand dollars, or so much thereof as may be necessary, is hereby appropriated and set aside for the purpose of paying the expenses of the commission, and the salaries, compensations, costs and expenses of its employees. The salaries of the members of the commission shall be payable out of the state fund, in the same manneras the salaries of other officers are paid and charged to the appropriations which have been or shall hereafter be made from time to time by the legislature for the administration of this act. (Acts 1915, Second Extraordinary Session, chap. 4.)

Sec. 16. Any party feeling aggrieved by the entry of a final order by the commission, affecting him or it, may present his or its petition in writing to the supreme court of appeals or to a judge thereof in vacation, within 30 days after the entry of such order, praying for the suspension of such final order. (21) The

APPEAL AND REVIEW

(21) When the Public Service Commission, under a misapprehension as to the law, refuses an applicant relief against a public service corporation to which he is entitled and the proceeding