Delardas v. Morgantown Water Comm'n
In Delardas v. Morgantown Water Comm'n, 148 W. Va. 776, 137 S.E.2d 426 (1964), the appellants challenged the circuit court's refusal to grant mandamus relief in their action to compel an election under the same statute at issue in Plymale, former W. Va. Code 8-4-20.
In that case the City had refused to conduct the election on the basis that it had already obtained a certificate of convenience and necessity from the Public Service Commission, approving and authorizing the sewerage rates and fees contained in a previously adopted ordinance.
The Court in Delardas affirmed the lower court, holding that the otherwise sanctioned referendum election had to "yield to the paramount power of the State, vested in the public service commission by the applicable statutory provisions . . . to establish and promulgate such rates and charges." 148 W. Va. at 786, 137 S.E.2d at 433.
In reaching this conclusion, the Court applied reasoning that is seemingly diametrically opposed to that employed in State ex rel. Wells v. City of Charleston, 92 W. Va. 61, 114 S.E. 382 (1922):
Inasmuch as refusal by the voters of the City of Morgantown to ratify the ordinance at any election that might be held could not in any way affect, nullify or supersede the rates and charges established by the final unreviewed order of the public service commission . . ., any election held after the entry of such order would be of no force or effect but would be entirely fruitless and utterly unavailing. For that reason a writ of mandamus to require the City of Morgantown to hold such useless election should not be awarded. It is well settled by many decisions of this Court that a writ of mandamus will not be issued in any case when it is unnecessary or when, if used, it would prove unavailing, fruitless or nugatory. . . .(Id. at 787-88, 137 S.E.2d at 434 .)