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applicant shall deliver a copy of such petition to the secretary of the commission before presenting the same to the court or the judge. The court or judge shall fix a time for the hearing on the application but such hearing shall not be held sooner than five days, unless by agreement of the parties, after its presentation, and notice of the time and place of such hearing shall be forthwith delivered to the secretary of the commission, so that the commission may be represented at such hearing by one or more of its members or by counsel. If the court or the judge after such hearing be of the opinion that a suspending order should issue, the court or the judge may require bond, upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner as are just and reasonable. The hearing of the matter shall take precedence over all other matters before the court except the correction of assessments. For such hearing the commission shall file with the clerk of said court all papers, documents, evidence and records or certified copies thereof as were before the commission at the hearing or investigation resulting in the entry of the order from which the petitioner appeals. The commission shall file with the court before the day fixed for the final hearing a written statement of its reasons for the entry of such order and after arguments by counsel the court shall decide the matter in controversy as may seem to be just and right. (Acts of 1913, chap. 9.)

Sec. 17. Every officer, agent, employe, or stockholder of any such public service corporation, and every patron, passenger, shipper or consignee, or other person, who shall violate any provisions of this act, or who procures, aids or abets any violation of any such provision by any such public service corporation, shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than one thousand dollars or be confined in jail not more than one year, or both, in the discretion of the court. When any person is convicted of a violation of any provision of this act and it is alleged in the indictment on which he is convicted, and is admitted, or by the jury found that he has been before convicted of the violation of any provisions hereof committed prior to the violation for which the indictment upon trial was found, then he shall be fined not less than two hundred nor more than two thousand dollars, or be confined in jail not less than thirty days, nor more than one year, or both, in the discretion of the court. When any person is convicted of a violation of any provision of this act and it is alleged in the indictment upon which he is convicted, and is

is transferred to this court by petition under sec. 16 of said Act, this court upon final hearing and decision of the matter in controversy, will suspend the order of the commission, refusing the relief and reward a peremptory writ of mandamus against such corporation, requiring it to render the service denied or perform the act wrongfully omitted by it. Wiengrove v. Public Service Commission, 1 An. Rep. 255.

The judgment or order of the Public Service Commission in such cases on questions of expediency, and as to what is best for the public interests, is final and not reviewable by this court. United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571, 1 An. Rep. 206.

Findings of the fact by the Public Service Commission based upon evidence to support them will not be reviewed by this court. Norfolk & Western Railway Company v. Public Service Commission, 82 W. Va.; 96 S. E. 62.

Provisional orders of the Public Service Commission, valuing the property of and fixing rates to be charged by a public service corporation, for experimental purposes and retaining the case on its docket for future action after the result of such experiment is ascertained, are not final orders, subject to the control of this court under section 16 of the Public Service Commission Act. City of Bluefield v. Bluefield Water Works & Improvement Co., 81 W. Va. 201.

The valuation of the property of a public service corporation and prescribing rates for tolls and charges for services to be rendered are purely legislative acts, not subject to judicial review except in so far and in so far only as may be necessary to determine whether such rates are void on constitutional or other grounds. City of Bluefield v. Bluefield Water Works & Improvement Co., 81 W. Va. 201.

In a suit in a federal court to enjoin the enforcement of gas rates fixed by a state commission, the complainant assumes 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,

admitted, or by the jury found that he has been twice, or oftener, before convicted of a violation of any provisions hereof committed prior to the violation for which the indictment upon trial was found, then he shall be fined not less than five hundred nor more than five thousand dollars, and shall, in addition thereto, be confined in the county jail not less than three months nor more than one year. (Acts of 1913, chap. 9.)

Sec. 18. Any person, firm or corporation claiming to be damaged by any violation of this act by any public service corporation subject to the provisions of this act, may make complaint to the commission, as provided herein, and bring suit in his own behalf for the recovery of the damages for which such public service corporation may be liable under this act in any circuit court having jurisdiction. In any such action, the court may compel the attendance of any agent, officer, director or employee of such corporation as a witness and require also the pro ction of all books, papers and documents which may be used as evidence, and in the trial thereof, such witnesses may be compelled to testify, but any such witness shall not be prosecuted for any offense concerning which he is compelled hereunder to testify. (Acts of 1913, chap. 9.)

Sec. 19. The secretary shall keep a record of all proceedings, acts, orders and judgments of the commission, certified copies of which shall be admitted as evidence in any court of this state. The commission shall adopt a seal which shall be affixed to all official papers under such regulations as the commission may prescribe. The commission shall likewise prescribe a schedule of fees to be charged for the certification of all records and papers, and sums to be paid witnesses and other costs necessary and incident to hearings before it and order the same paid by the unsuccessful party. All sums collected by the secretary, except witness fees, shall be paid by him into the state treasury. The witness fees shall be paid to the person to whom they are allowed. The sums to be paid into the state treasury representing the collections of any month shall be so paid on or before the tenth of the following month. (Acts of 1913, chap. 9.)

Sec. 20. Nothing in this act shall be construed to prevent any common carrier from furnishing free transportation to its officers, attorneys, agents and employes, and their families, and like free transportation to the officers, attorneys, agents and employes of other common carriers and their families, mail clerks, express_ men and sleeping car conductors and porters, and reduced rates to all person

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215 Fed. 940; San Diego Land Co. v. Nat'l City, 174 U. S. 739; San Diego Land Co. v. Jasper 189 U. S. 739; Ex parte Young 209 U. S. 123.

No appeal lies to this court from a decision of the Public Service Commission granting to a hydroelectric company the .ight to erect a dam and to institute condemnation proceedings to acquire the land within the contour lines of the water to be thereby impounded. Howell v. Public Service Commission, 78 W. Va. 664.

An order of the Public Service Commission setting aside a regulation of a railroad company, classifying shippers for the purpose of distribution of freight cars for coal shipments, on an occasion of an immense shortage in such cars, is reviewable on the question of the reasonableness of the regulation and the character of the discrimination it makes. Baltimore & Ohio R. R. Co. v. Public Service Commission, P. U. R. 1918A-608, 94 S. E. (W. Va.) 545.

One entitled to invoke the jurisdiction of a federal court on the ground that a state statute deprives him of property rights in violation of the Constitution of the United States cannot be deprived of that right by reason of being given a remedy in the state courts. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940.

Smith v. Ames, 169 U. S. 466; United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571; Bacon v. Ruthland R. R. 232 U. S. 134.

This court by sec. 16, chap. 9, Acts 1913, is given jurisdiction not by appeal, but as upon original process to review an order of the Public Service Commission created by said Act, and such jurisdiction is limited to matters purely judicial and does not extend to matters purely administrative, executive or legislative, such jurisdiction not being conferred by the Constitution. United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571, 1 An. Rep. 206.

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 gound for difference of opinion among reasonable men. Manufacturers L. & H. Co. v. Ott, 215 Fed. 940

engaged in religious, charitable and literary pursuits, and for excursions, and for children and students attending schools and colleges, and for commutation tickets; and, provided, further, that nothing in this act shall be construed to prevent telephone, telegraph, sleeping car and express companies from entering into contracts with one another, and with common carriers for the exchange of service, or from exchanging with one another and with common carriers, the privileges of passes or franks for the officers, agents, employees and their families, of such companies and common carriers. (Acts of 1913, chap. 9.)

Sec. 21. The commission may at any time require persons, firms, companies, associations, corporations or municipalities, subject to the provisions of this. act, to furnish any information, which may be in its or their possession, respecting rates, tolls, fares, or charges or practices in conducting its or their service, (22) and to furnish the commission at all times for inspection any books or papers or reports and statements, which reports and statements shall be under oath, when required by the commission, and the form of all reports required under this act shall be prescribed by the commission (except as provided in section twelve hereof), which shall collect, receive and preserve the same, and shall annually tabulate and publish the same in statistical form, together with the acts and proceedings of the commission. (Acts of 1913, chap. 99.)

Sec. 22. The commission shall have the power to enforce, originate, establish, modify, change, adjust and promulgate tariffs, rates, joint rates, tolls and schedules for all public service corporations, (23) including municipalities supplying gas, electricity or water; and whenever the commission shall, after hearing, find any existing rates, tolls, tariffs, joint rates or schedules unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any of the provisions of this act, the commission shall by an order fix reasonable rates, joint rates, tariffs, tolls, charges or schedules to be followed in the future in lieu of those found to be unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any provisions of law, and the said commission, in fixing the rate of any railroad company may fix a fair, reasonable and just rate to be charged on any branch line thereof, independent of the rate charged on the main line of said railroad. (Acts of 1915, chap. 8.)

(22) Defendant ordered to keep an accurate account in detail, of the cost of improvements and betterments ordered and file same with the commission for the purpose of enabling the commission to ascertain a fair valuation of the property and fix rates. Re Logan Water Works, Bul. No. 29, 1917, An. Rep. 231.

A proceeding with regard to the rates of a water utility was retained on the docket of the commission for further action upon the filing of a report by the utility one year after the inauguration of a new schedule of rates which the commission prescribed. Re Charles Town Water Co., Bul. No. 9, Bien Rep. 1915-16, p. 84, P. U. R. 1916D-725.

A water utility for which the commission prescribed a new schedule of rates, was directed to file a statement showing its actual revenues and expense under the new rates for one year. Re Charles Town Water Co., Bul. No. 9, Bien. Rep. 1915-16, p. 84; P. U. R. 1916D-725.

A water utility for which meter rates were newly established by the commission was directed, at the expiration of one year after the installation of meters, to file with the commission a statement of its receipts and expenses. Thorn v. Montgomery L. & W. Co., Bul. No. 11, Bien. Rep. 1915-16, p. 181; P. U. R. 1916C-406.

Defendant ordered to operate a morning train as asked for by petitioners, for a period of six months; to make an honest effort to develop business thereon; to keep a detailed account of the revenues and expenses incurred in its operation, and to file same with the commission in order that it may be ascertained definitely whether the operation of said train is an unreasonable and unjust burden upon defendant. Sutton v. C. & C. Ry. Co., Bul. No. 19; 1917 An. Rep. 151.

RATE MAKING

APPORTIONMENT-AS AFFECTED BY COURT DECISIONS

(23) That certain methods of apportioning operating expenses were used by a railroad in a case in which the Federal Supreme Court declared the West Virginia statute, prescribing a passenger fare of 2 cents a mile, unconstitutional as applied to that railroad does not require the commission to approve those methods in a proceeding by another carrier for an increase, beyond 2 cents a mile, where the court did not pass upon the reasonableness of the methods. Re C. & O. Ry. Co., Bul. No. 30; 1917 An. Rep. 240; P. U. R. 1917D-152.

Sec. 23. Whenever, under the provisions of this act, the commission shall find any regulations, measurements, practices, acts or service to be unjust, unreasonable, insufficient or unjustly discriminatory, or otherwise in violation of any provisions of this act, or shall find that any service is inadequate, or that any service which can be reasonably demanded cannot be obtained, the

RATE MAKING APPORTIONMENT-BETWEEN INTRASTATE AND INTERSTATE

SERVICE

The expense of locomotive repairs should be apportioned between intrastate and interstate service by assigning to the states the repairs of individual engines and the mileage made by those engines in each state, and by assigning those repairs for which there are no mileage records, according to the class of service that the mileage made bore to the total mileage made since the last genera overhauling of the engine, rather than by assigning light or current running repairs to the states according to the current locomotive mileage in the state, and the heavy or general repairs accordin g to the individual locomotive mile basis. Re C. & O. Ry. Co., Bul. No. 30; 1917 An. Rep. 240 P. U. R. 1917D-152.

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A large sum paid by a railroad company to redeem coupons issued for excess fares pending the determination to the validity of a state statute prescribing a maximum rate cannot be charged as an expense to the intrastate service nor pro-rated over the interstate system, in determining whether to allow an increase over the statutory rate, since such expense cannot be considered at all, as it cannot reasonably be expected to recur in the future, even though it was proper expense for the year in which it was incurred. Re C. & O. Ry. Co., Bul. No. 30, 1917 An. Rep. 240; P. U. R. 1917D-152.

In apportioning the general expenses of a railroad system between intrastate and interstate service, the mileage of a subsidiary company should be included although it has not been taken over as a part of the system and although the salaries of the general officers of the system have not been increased because of any additional work in supervising that road, where both companies are in fact operated under one system whose general officers supervise the subsidiary. Re C. & O. Ry. Co., Bul. No. 30, 1917 An. Rep. 240; P. U. R. 1917D-152.

RATE MAKING APPORTIONMENT-AS BETWEEN FREIGHT AND PASSENGER

TRAFFIC

It is unreasonable to apportion the expense of maintenance of equipment, including locomotive repairs, between passenger and freight service upon the locomotive-mileage basis, where no consideration is given to the fact that it costs more to repair freight-locomotives than passenger locomotives, and that a large per cent of the total engine mileage is "mine run" or "switching" mileage, which is distinctly freight service. Re C. & O. Ry. Co., Bul. No. 30, 1917, An. Rep. 240; P. U. R. 1917D-152.

In apportioning railroad expenses between freight and passenger service, “mine-run expense," consisting of a crew having the duty to distribute and collect coal cars, should be assigned to the freight business. Re C. & O. Ry. Co., Bul. No. 30, 1917 An. Rep 240; P. U. R. 1917D-152.

Railroad-yard expenses, which include a "mine-run expense" consisting of a crew having the duty to distribute and collect coal cars, are properly apportioned between passenger and freight service on the switch-engine mile basis, although the coal-car services are nearly all performed between the point of assemblage and the mine, and the carrier receives revenue only to the point of assemblage, since expense should be assigned where incurred, regardless of the question of revenue. Re C. & O. Ry. Co., Bul. No. 30, 1917 Än. Rep. 240, P. U. R. 1917D-152.

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In apportioning the expense of maintenance of way and structures between freight and passenger service, the gross weight method, although not taking into account the speed of the train, is at least entitled to as much consideration as the revenue locomotive mile method or as the method of apportionment on the basis of the actual division of the following accounts; road enginemen, fuel for road locomotives, water for road locomotives, lubricants for road locomotives, other supplies for road locomotives, road trainmen and train supplies and expenses. Re C. & O. Ry. Co., Bul. No. 30, 1917 An. Rep. 240, P. U. R. 1917D-152.

RATE MAKING

APPORTIONMENT-UNPROFITABLE LINE

It is improper to charge an unprofitable street car line either on the per car or car-hour basis with its full proportionate share of the taxes, rentals, or overhead expenses, since if the line is not paying it would not be assessed for taxation at the same proportionate value as other portions of the system that were paying, nor would as much rental be paid for it as for paying portions of the system. Re Charleston Interurban R. R. Co., Bul. No. 15, Bien. Rep. 1915-16, p. 224; P. U. R. 1916F-338.

Revenue basis proper for division of common expenses. Ames v. Union P. R. Co., 64 Fed. 165; Smyth v. Ames, 169 U. S. 466; Chi. M. & St. P. R. Co. v. Tompkins, 176 U. S. 167; Northern P. R. Co. v. Keyes, 91 Fed. 47; Re Arkansas R. Rates, 163 Fed. 141; St. Louis & S. F. R. Co. v. Hadley, 168 Fed. 317; Mo. K. & T. R. Co. v. Love, 177 Fed. 493.

RATE MAKING-APPORTIONMENT-JOINT ENTERPRISE

A proper investigation for rate making purposes would demand that we regard the Winefrede Railroad Company and the Winifrede Coal Company as one enterprise, assigning to each its proper proportion of the earnings and expenses of their activities and thus ascertain what return the railroad company is entitled to have for the services rendered in this particular field of said joint enterprise. Re Winifrede Railroad Company, Bul. No. 36.

commission shall determine and declare, and by order fix, reasonable measurements, regulations, acts, practices or service, to be furnished, imposed, observed and followed in the state in lieu of those found to be unjust, unreasonable, in

The cost of drilling dry or non-paying wells in territory producing both oil and gas should be apportioned according to the number of oil and gas wells already on the developed leasehold. Re United Fuel Gas Co., Bul. No. 43.

In operated leaseholds producing both oil and gas when oil is found by the drilling of a new well, the gas investment in such leaseholds should be reduced in the proportion of the gas wells to the total number of wells, the oil investment or oil operating expense should be charged with its proper proportion of the past and future carrying charges upon such lease, and gas investment or expense credited therewith. Re United Fuel Gas Co., Bul. No. 43.

RATE MAKING-APPORTIONMENT-DIFFERENT BRANCHES OF SAME SERVICE

Sleeping cars should be credited with the train fares collected from passengers occupying them, notwithstanding there is room in the other cars for the passengers since the correct rule is to credit each car with its earnings. Public Service Commission v. C. & O. Ry. Co., Bul. No. 12, Bien. Rep. 1915-16, p. 164, P. U. R. 1916E-353.

The fairest and most equitable method of apportionment, is to apportion the general investment and the investment in production between wholesale and retail and between localities on the basis of sales; to apportion the transmission investment between wholesale and retail and to localities upon the basis of demand and sales weighted by distance and to asssign the distribution investment direct. Re United Muel Gas Co., Bul. 43.

Operating expenses to a certain extent are controlled by the same factors that enter into the apportionment of investment and except as to transmission expenses which do not seem to be materially affected by the element of demand or meter capacity as in the case of investment should be apportioned as between wholesale and retail, between domestic and industrial and between localities substantially upon the same bases as used for apportionment of investment. Re United Fuel Gas Co., Bul. 43.

RATE MAKING-DEPRECIATION-CONSIDERATION OF

A utility is entitled to sufficient income to enable it to set aside annually for depreciation during the life of the utility a sum which properly invested will amount to the present value of the plant. Re Clarksburg Light & Heat Co., Bul. No. 18; 1917 An. Rep. 53; P. U. R. 1917A-577.

Depreciation, as commonly applied to the property of natural gas utilities, is broader than the generally accepted use of the term implies, in that it takes into account the exhaustion of wells and the depletion of gas fields, as well as the wearing value of the physical elements composing the plant. Re United Fuel Gas Co., Bul. 43.

An annual reserve of two per cent upon the value of a water utility's plant fixed at $68,000 was held by the commission to be sufficient to provide for depreciation and the upkeep of the utility's property in the same condition. Re Charles Town Water Co., Bul. No. 9; Bien Rep. 1915-16, p. 84; P. U. R. 1916D-725.

No depreciation was charged against applicant company's property for the reason that its plant and equipment is of comparatively recent construction and development.. Re Huntington Development and Gas Co., Bul. No. 38.

The proper annual allowance for depreciation should be determined either upon what is termed the straight line average life basis," that is by dividing the wearing value or total possible depreciation by the estimate average life of the plant, or upon what is termed "the sinking fund basis,' by ascertaining what sum paid annually and compounded at a given rate of interest will produce at the end of the estimated average useful life of the plant, a sum equal to the total possible depreciation or wearing value of the plant. Re United Fuel Gas Co., Bul. 43.

A proper refinement of accounting would not justify the application of a straight percentage of depreciation to the value of the whole property, even to ascertain the accrued depreciation. Re United Fuel Gas Co., Bul. No. 43.

A depreciation reserve of 5 per cent per annum was allowed in determining the rates for a water utility whose plant was poorly constructed and depreciated very rapidly, the mains having been aid with steel instead of cast-iron pipe. Thorn v. Montgomery L. & W. Co., Bul. No. 11; Bien. Rep. 1915-16, p. 181; P. U. R. 1916C-406.

The depreciation of a natural gas company is more rapid than that of other utilities. Re Clarksburg Light & Heat Co., Bul. No. 18; 1917 An. Rep. 53; P. U. R. 1917A-577.

In ascertaining the reproduction cost less accrued depreciation of natural gas-pipe lines, a deduction of 33% per cent from their reproduction cost, rather than 25 per cent, was held to be proper, in view of the facts that the age of the pipe average from 6 to 14 years, and that the average life of wrought iron pipe is from twenty to twenty-five years, and of steel pipe from fifteen to twenty years. Clarksburg Light & Heat Co., Bul. No. 18; 1917 An. Rep. 53; P. U. R. 1917A-577.

An annual allowance of 10 per cent of the present value of a natural gas system was held to be sufficient for a depreciation fund, upon taking into consideration the value of the recoverable material, that the life of the utility will be between five and ten years and that its land in so far as the drilling of new wells is concerned, will be finally developed within three or four years, when decreased production will have to be met, if met at all, by the purchase of gas. Re Clarksburg Light & Heat Co., Bul. No. 18; 1917 An. Rep. 53; P. U. R. 1917A-577.

In determining what would be a reasonable amount for depreciation, consideration should be had of the fact that the supply of natural gas in West Virginia and particularly in the vicinity of the operation of applicant company, is being rapidly exhausted and even if the present rate of production is maintained, it can only be a few years at most when its large investment in plant equipment will be of little value. Re Pittsburg & West Va. Gas Co., Bul. No. 24; 1917 An. Rep. 179.

An allowance of 8% will not be considered improper for depreciation and extra hazards and risks assumed. Re Pittsburg & West Va. Gas. Co., Bul. No. 24.

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