Commission Ex Rel. Public Service Commission v. Southern West Virginia Oil & Gas Corp.

Lovins, Judge,

dissenting:

I dissent from the conclusion reached by a majority of the Court and the reasons given therefor, and would award the writ of mandamus.

I agree that a relator in a proceeding in mandamus must establish a clear legal right to the relief sought, but I think that the majority opinion of the Court has either overlooked or not considered the fact that the relief sought in this case pertains to the consumers of gas in Wayne, West Virginia, and involves a question of public policy.

The public policy of this state relative to public utilities is well fixed and defined by statute. The provisions of Chapter 24, Code, 1931, the various articles and sections of which have been amended from time to time, define the public policy of this state relative to the regulation of public utilities. Such utilities are given certain privileges not enjoyed by other individuals and corporate business concerns, such as the right of eminent 'domain, a limited monopoly and a guarantee of a reasonable return on their investment, among others, and in return they are restricted in the use and disposition of their property to a reasonable and justifiable extent necessary to serve the public. It may be observed, the state, through the Public Service Commission, regulates the rates and practices of public utilities so as to afford *560reasonable and justifiable protection to the members of the public served by public utilities. It should be borne in mind that the rights and powers given the Public Service Commission to enforce its orders are derived from the rights of the public.

I would distinguish this proceeding to enforce public rights of gas consumers served by the Wayne Gas Company from the ordinary common law mandamus proceeding. The Public Service Commission is given power to “ * * * change or prohibit any practice, devise [device] or method of service * * * ” and make an order showing such prohibition. [Emphasis supplied]. Section 2, Chapter 115, Acts of the Legislature, 1935, Regular Session.

Adverting to the mandamus authorized by Code, 3-5-41, in election matters, this Court has held that the writ of mandamus as authorized by that section is broadened and liberalized in the scope given such writ by common law. Daugherty v. County Court, 127 W. Va. 35, 31 S. E. 2d 321. By a parity of reasoning, I think that by Chapter 115, Article 2, Section 2, Acts of the Legislature, 1935, Regular Session, the writ of mandamus is broadened to a certain extent and should be treated to effectuate and carry out the legislative intent.

Southern West Virginia Oil & Gas Corporation could not legally deprive itself or impair its power to perform its duty to the public as a public utility gas company. When it disposed of its gas leases and wells to the Mullins Gas Company and invested that Company with the power of management, thus impairing the services theretofore rendered to the public consumers of gas, it was contrary to public policy of this state to make a contract of that character. “Corporations which are endowed by government with special powers and privileges are charged with certain duties and obligations to the public, and, in violation of public policy, cannot bind themselves by contract to do that which would disable them from performing those duties and obligations, *561or compel them to subordinate such duties and obligations to their private interests.” Lone Star Gas Co. v. Municipal Gas Co., 117 Tex. 331, 3 S. W. 2d 790, 58 A. L. R. 797, (1928).

The contract between the Southern West Virginia Oil & Gas Corporation and the Mullins, Star, and Lynn Gas Companies is void as being contrary to the public policy of this state. Lone Star Gas Co. v. Municipal Gas Co., supra.

I think this Court, in view of that principle, should have treated the Southern West Virginia Oil & Gas Corporation as still being the owner of sufficient gas leases and wells to supply the consumers in the town of Wayne with gas, though the Public Service Commission permitted, by the order of 1939 the so called separation contract.

As to the general rule with respect to public service corporations, see 58 A. L. R. 804 et seq., Annotation, entitled: “Validity of contract which impairs or tends to impair the ability of a public service corporation to serve the public”. Two headnotes to the case of Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396, 9 S. Ct. 553, 32 L. Ed. 979 reads as follows:

“Courts decline to enforce contracts which impose a restraint, though only partial, upon business of such character, that restraint to any extent will be prejudical to the public interest.
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A corporation cannot disable itself by contract from the performance of public duties which it has undertaken, and thereby make public accommodation or convenience subservient to its private interests.”

Although in this jurisdiction I have been unable to find any case directly in point to the case here presented, Gas Co. v. Lowe and Butler, 52 W. Va. 662, 44 S. E. 410, indicates that it was the duty of either the Wayne or *562the Southern West Virginia Oil & Gas Company to furnish gas to the inhabitants of Wayne, West Virginia. Wayne Gas Company could not do so unless it obtained its supply of gas from the Southern West Virginia Oil & Gas Company. See Gas Co. v. Gas Co., 58 W. Va. 22, 50 S. E. 877; Carnegie Nat. Gas Co. v. Swiger, 72 W. Va. 557, 79 S. E. 3. In the body of the opinion in the Swiger case, the Court’s opinion uses this language:

“Are not the rights of the public so fixed sufficiently definite to answer the requirements of the law? We think so. The rights of the people are thus protected in nearly every case where the public is served by the public service corporations, furnishing water, gas, electricity or transportation.”

The Public Service Commission of this State had the power to require the Wayne Gas Company, the Southern West Virginia Oil & Gas Corporation to conform their conduct and policies to the laws of this state and to the rules and regulations of the commission not contrary to the law. Railway v. Pub. Serv. Com., 91 W. Va. 414, 113 S. E. 247. The Wayne Gas Company being organized to the end, and without power of obtaining its supply of natural gas other than from the Southern West Virginia Oil & Gas Corporation, could not lawfully be deprived of such supply. Refining Co. v. Coal Co., 92 W. Va. 479, 115 S. E. 431; Lone Star Gas Co. v. Municipal Gas Co., supra; Gibbs v. Consolidated Gas Co. of Baltimore, supra. It is adverted to in the Court’s opinion that the Wayne Gas Company owes considerable money to the Southern West Virginia Oil & Gas Corporation and its successive managers, Mullins, Star or Lynn Gas Companies. That fact is beside the point when you consider the rights of the public as to utility corporations. Either the Mullins, Star or Lynn has the right to resort to courts for the collection of such debt and the fact of such indebtedness should not prejudice the rights of the public to the production and distribution of gas for consumption by its members.

*563It is my thought, and the authorities seem to bear out this conclusion, that once property is charged with a public service, necessary for and devoted to a public use, this public requirement follows such property regardless of its transfer to persons not engaged in the public service. The gist of that conclusion is that the leasehold and wells of the Southern West Virginia Oil & Gas Corporation at the time of the sale to the Mullins Gas Company were burdened by the public necessity of furnishing gas for the purpose of distribution in the town of Wayne.

The contention by the Star Gas Company that it is a purchaser for value and without notice is without merit.

The existence of indebtedness of Wayne Gas Company or the fact the Star or Lynn Gas Company, its successor, is not a public utility, although the managers and two-third owners of the property, impressed with a public obligation, could not allow them to take it free and discharged of that obligation contrary to public policy.

I think the Public Service Commission has shown a clear legal right to the enforcement of its order for the furnishing of natural gas adequate and sufficient to serve the town of Wayne and would therefore award the writ prayed for.

I am authorized to say that Judge Riley joins in this dissent.