State ex rel. North Carolina Utilities Commission v. Story

Citation84 S.E.2d 386,241 N.C. 103
Decision Date10 November 1954
Docket NumberNo. 169,169
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina, ex rel. NORTH CAROLINA UTILITIES COMMISSION, v. C.O. STORY, Belton Jackson, F.W. Bradley, John H. Bradley, Bob Price, J.B. Pace, Moses Bradley, Harold C. Case, D.P. Henderson, F.B. Edwards, Jack Story, R.V. Thompson, Mrs. Allen Thompson, Miss Margaret Causby, Galther Johnson, Mrs. J.B. Thompson, Horace Thompson, H.R. Thompson, Mrs. Gaither Johnson, L.R. Newman, Mark Constance, and Curtis Garrett.

Joyner & Howison, Raleigh, for respondents-appellants.

Harry McMullan, Atty. Gen., John Hill Paylor, Asst. Atty. Gen., R.L. Whitmire, Jr., Frank L. Todd, Hendersonville, for petitioners-appellees.

HIGGINS, Justice.

Two questions are presented by this appeal: First, does the North Carolina Utilities Commission have authority to issue to the North Carolina Wildlife Resources Commission a certificate of public convenience and necessity for the establishment of the Green River Game Management Area in Polk and Henderson Counties? Second, if so, did the Wildlife Resources Commission authorize the application for the certificate?

The General Assembly of 1925 enacted Chapter 122, now G.S. § 113-2, creating a Department of Conservation and Development. Among its duties were declared to be, to aid (a) in the promotion of the conservation and development of the natural resources of the State, (b) to promote a more profitable use of lands, forests and waters. The control and management of the Department was vested in the "Board of Conservation and Development," consisting of 15 members appointed by the Governor. The Act creating the Board provided for a director whose duty it was to make surveys of the economy and natural resources of the State and to perform such other duties as the Board might prescribe, all under the direction of the Board.

Succeeding sessions of the General Assembly added new duties to the Board, among them that of collaborating with "the several United States government bureaus and other sources as may assist in * * * carrying out the * * * objects of the Department." G.S. § 113-16. Chapter 486, section 4, enacted in 1935, now G.S. § 113-84, provides among other things, that the Board may "acquire by purchase, grant, condemnation, lease, agreement, gift, or devise lands or waters suitable for the purposes hereinafter enumerated * * *:

"(a) Game farms or game refuges.

"(b) Lands or waters suitable for game, bird or fur-bearing animal restoration, propagation or protection.

"(c) For public hunting or trapping areas to provide places where the public may hunt or trap in accordance with the provisions of law or the regulations of the Board."

Section 5 provides that the Board may "enter into co-operative agreements with federal agencies, municipalities, corporations, organized groups of landowners, associations and individuals, for the development of game, bird or fur-bearing animal management and demonstration projects."

In 1947 the General Assembly enacted the North Carolina Wildlife Resources Law, now G.S. §§ 143-237 to 143-254.1. G.S. § 143-240 creates the North Carolina Wildlife Resources Commission, consisting of nine members to be appointed by the Governor, and subsection 247 provides that the duties, powers, jurisdiction and responsibilities theretofore vested by statute in the Department of Conservation and Development, the Board of Conservation and Development, the Director of Conservation and Development, the Division of Game and Inland Fisheries, the Commissioner of Game and Inland Fisheries, or any predecessor organization, board, commission or commissioner, or other official relating to the wildlife resources of North Carolina, excluding all commercial fish and fisheries, be transferred to and vested in the North Carolina Wildlife Resources Commission. The Act provides for the taking over of the duties from the organization of the latter commission appointed by the Governor.

The application filed before the North Carolina Utilities Commission recites that the Wildlife Resources Commission in cooperation with the Federal Government has under option to purchase approximately 8,000 acres of land in Polk and Henderson Counties, comprising a project known as the Green River Wildlife Management Area. The application further alleges that 5,000 acres are already under lease to the North Carolina Wildlife Resources Commission. The application further alleges that the lands of the respondents are necessary for a more complete and satisfactory development of this area for the purposes above mentioned in order that the Wildlife Resources Commission may better protect, propagate and preserve the game animals, birds, fur-bearing animals, and fish in this area. The application states that the Wildlife Resources Commission desires to acquire respondents' property in the manner provided in Article 3, Chapter 40, General Statutes of North Carolina, entitled "Public Works Eminent Domain Law." The certificate is requested in order that the Commission may exercise its right of eminent domain and take the property. The certificate is necessary under G.S. § 40-53, which is as follows:

"Necessity for certificate of public convenience and necessity from Utilities Commission.--Notwithstanding any finding of public convenience and necessity, either in general or specific, by the terms of this article, the right of eminent domain shall not be exercised unless and until a certificate of public convenience and necessity for such project has been issued by the Utilities Commission of North Carolina, and the proceedings leading up to the issuing of such certificate of public convenience and necessity, and the right to appeal therefrom shall be as now provided by law and said rights are hereby expressly reserved to all interested parties in said proceedings. In addition to the powers now granted by law to the Utilities Commission of North Carolina, the said Utilities Commission is hereby vested with full power and authority to investigate and examine all projects set up or attempted to be set up under the provisions of this article and determine the question of the public convenience and necessity for said project."

In construing the above section, Justice Denny, in the case of In re Housing Authority of City of Charlotte, 233 N.C. 649, 655, 65 S.E.2d 761, 765, says: "We think the finding of public convenience and...

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3 cases
  • Trusteeship of Kenan, In re, 181
    • United States
    • United States State Supreme Court of North Carolina
    • January 17, 1964
    ...taking of one's property unless (a) in satisfaction of a legal obligation, or (b) for a public purpose, State ex rel. North Carolina Utilities Comm. v. Story, 241 N.C. 103, 84 S.E.2d 386; City of Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600; Cozard v. Hardwood Co., 139 N.C. 283, 51 S.E. ......
  • Texas Eastern Transmission Corp. v. Wildlife Preserves, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • December 5, 1966
    ...Valley Water Supply District v. Brown, 248 Miss. 4, 156 So.2d 572, 158 So.2d 694 (Sup.Ct.1963); State ex rel. North Carolina Utilities Comm. v. Story, 241 N.C. 103, 84 S.E.2d 386 (Sup.Ct.1954). Under the circumstances, and although plaintiff's right to condemn land in this area for the pipe......
  • Department of Archives and History, Application of, 104
    • United States
    • United States State Supreme Court of North Carolina
    • June 7, 1957
    ...in the Public Works Eminent Domain Law. A certificate of public convenience and necessity is required. State ex rel. North Carolina Utilities Comm. v. Story, 241 N.C. 103, 84 S.E.2d 386; In re Housing Authority of City of Charlotte, 233 N.C. 649, 65 S.E.2d 761. Approval of the Governor and ......

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