Carolina Power & Light Co. v. Iseley

• Decision Date: 04 January 1933
• Docket Number: 272.
• Citation: 167 S.E. 56,203 N.C. 811
• Parties: CAROLINA POWER & LIGHT CO. v. ISELEY, Mayor, et al.
• Court: North Carolina Supreme Court

167 S.E. 56

203 N.C. 811

CAROLINA POWER & LIGHT CO. v. ISELEY, Mayor, et al.

No. 272.

Supreme Court of North Carolina

January 4, 1933

Appeal from Superior Court, Wake County; Sinclair, Judge.

Action by the Carolina Power & Light Company against George A Iseley, Mayor of City of Raleigh, C. A. Gosney, M. A Rushton, T. Lacy Williams, guardian ad litem for unknown defendants incapacitated or under legal disability, and others. From the judgment, named defendants, except defendant Iseley, appeal.

Affirmed.

Contract between corporation and city to discontinue existing street car line and substitute motorbus service held valid without submission to voters, though city charter required franchise to be approved by voters.

Where corporation entered into contract with city to discontinue street car line and substitute motorbus service, corporation commission's orders authorizing such substitution within and beyond city limits held valid.

The facts which constitute the cause of action alleged in the complaint in this action, and on which the plaintiff Carolina Power & Light Company, prays for relief, are admitted in the pleadings. These facts are set out in the judgment, which is as follows:

"This cause coming on to be heard by His Honor, N. A. Sinclair at the November Term, 1932, of the Superior Court of Wake County, there being present W. H. Weatherspoon, Pou & Pou, and A. Y. Arledge, attorneys for the plaintiff, Carolina Power & Light Company; Clem B. Holding, Attorney for the defendants George A. Iseley, Mayor, and C. C. Page and Carl L. Williamson, Commissioners of the City of Raleigh, N. C., and the City of Raleigh, N. C.; S. Brown Shepherd, Attorney for the defendant, Carolina Country Club; Murray Allen, Attorney for the defendants, C. A. Gosney and M. A. Rushton; and T. Lacy Williams, in personam, as Guardian ad Litem for such of the defendants, citizens, residents and freeholders of the City of Raleigh, N. C., the County of Wake, N. C., and elsewhere, as are incapacitated or for any reason under legal disability, and the cause being heard, the Court finds the following facts, to-wit:

"1. That this is an action instituted by the plaintiff, Carolina Power & Light Company, under chapter 102, of the Public Laws enacted by the General Assembly of North Carolina at its Regular Session, 1931, and known as 'The Uniform Declaratory Judgment Act.'

"2. That the defendants, George A. Iseley, Mayor, and C. C. Page and Carl L. Williamson, Commissioners of the City of Raleigh, and the City of Raleigh, N. C., have been duly served with summons, and have jointly filed an answer to the plaintiff's complaint; that the defendant, C. A. Gosney, has been duly served with summons and has filed an answer to the plaintiff's complaint; that the defendant, M. A. Rushton, has been duly served with summons, and has filed an answer to the plaintiff's complaint; that the defendant, Carolina Country Club, has been duly served with summons, and has filed an answer to the plaintiff's complaint; that all other citizens, residents and freeholders of the City of Raleigh, N. C., the County of Wake, N. C., and elsewhere, who constitute the public in general who have, or may claim to have, an interest in the controversial matters involved in this action, either generally as citizens, and/or specially as individual property owners, all of whom are so numerous that their names, contentions and special interests, if any, were unknown to the plaintiff, and could not, by the exercise of due diligence, be ascertained, were also duly made parties defendant in this action, and were invited to come in and set up any rights which they may have, or claim to have, involved in the subject matter of this action, and that all of said unknown persons have been duly served with summons by publication, as required by law, by publication of notice in the News & Observer and Raleigh Times, both being daily newspapers published, and of general circulation, in Wake County; that the time for filing answers has expired and none of said unknown defendants has filed an answer to the plaintiff's complaint, except that the defendant, T. Lacy Williams, who has been duly appointed Guardian ad Litem for all unknown defendants who are incapacitated, or under legal disability, has filed an answer for such defendants as he was appointed to represent.

"3. That the plaintiff, Carolina Power & Light Company, a public service corporation, engaged in the business of distributing, and otherwise dealing in electric current, and in operating a street railway system in the City of Raleigh under a franchise granted by the City of Raleigh, dated May 24, 1905, to the Raleigh Electric Company, which said franchise has been duly conveyed and assigned to said Carolina Power & Light Company, and that under said franchise said Carolina Power & Light Company, a number of years ago, constructed and has since continued to operate, as a part of its street railway system, a street car line out Glenwood Avenue to the limits of the City of Raleigh, and extending beyond the said City limits to the Old Bloomsbury Park property at or near the Carolina Country Club Company's property.

"4. That the Carolina Power & Light Company and the City of Raleigh entered into the contract, a copy of which is attached, as 'Exhibit B' to and made a part of the complaint, dated November 28, 1931, providing at the expense of the Carolina Power & Light Company:

"(1) For the discontinuance of the Glenwood Avenue street railway cars, which are operated over and along Glenwood Avenue, South West Street, Hargett Street, Dawson Street, and that part of Martin Street between Dawson and Fayetteville Streets, and

"(2) For the substitution of motor busses over and along the route within the City of Raleigh now traversed by said Glenwood Avenue line,

"(3) For the removal of certain trackage and overhead equipment used exclusively for the operation of said street cars, and

"(4) For certain construction work, including street paving and street surfacing.

"That said contract was upon the further condition that the obligation imposed upon the plaintiff, Carolina Power & Light Company, under the terms and provisions of said contract were not to be performed by, or enforced against, said Carolina Power & Light Company unless and until a lawful order, duly issued by the North Carolina Corporation Commission, authorized and empowered the plaintiff to discontinue the operation of that portion of its said Glenwood Avenue street car line within the City, as provided for in said contract with the City of Raleigh, and that said order further duly authorized and empowered the plaintiff to discontinue that portion of its said Glenwood Avenue street car line beyond the City limits, and to substitute motor bus transportation therefor, extending to the point of intersection of Glenwood Avenue, Ridgecrest Road, and Lassiter's Mill Road.

"5. That the Carolina Power & Light Company filed a petition with the North Carolina Corporation Commission on December 8, 1931, seeking authority to discontinue the operation of certain of its street car lines and substituting motor busses therefor along and over its Glenwood Avenue line, for the purpose of acquiring authority from said Corporation Commission to perform its agreement entered into with the City of Raleigh, North Carolina, all as will more fully appear by reference to said petition on file with the Corporation Commission, a copy of which is attached to the complaint, marked 'Exhibit C.'

"That upon the filing of said petition, and after due notices were issued and served, a hearing was had whereupon the said Corporation Commission of North Carolina issued its order, dated January 7, 1932, as will appear amongst the records of said Corporation Commission, and a copy of which is attached to the complaint, marked 'Exhibit P,' which said order, among other things, authorized and empowered the plaintiff, Carolina Power & Light Company 'to permanently discontinue the operation of street cars over and along Glenwood Avenue, South West Street, Hargett Street, Dawson Street, and that portion of Martin Street between Dawson and Fayetteville Streets, and to remove such of the trackage and overhead equipment used exclusively in the operation of said street railway cars, as provided for in the aforesaid contract between Carolina Power & Light Company and the City of Raleigh; and it is further authorized and empowered to discontinue the operation of electric street railway cars over and along that portion of Glenwood Avenue Line which extends from the limits of the City of Raleigh to the vicinity of the Carolina Country Club, and to remove its trackage and overhead equipment used exclusively in the operation of said electric street railway cars, provided the Carolina Power & Light Company shall substitute busses for electric railway cars, which are to be discontinued over and along Glenwood Avenue within the City of Raleigh, South West Street, Hargett Street, Dawson Street, and that portion of Martin Street between Dawson Street and Fayetteville Street, and over and along the remainder of the route traversed by the Glenwood Avenue electric railway cars, and provided it shall substitute motor busses over and along Glenwood Avenue between the limits of the City of Raleigh and the point of intersection of Glenwood Avenue, Ridgecrest Road and Lassiter's Mill Road.

"6. That the defendant, M. A. Rushton, excepted to and appealed from the Commission's said order, as will appear by reference to copies of said exceptions and notice of appeal attached to and made a part of the complaint in this action. That the appeal of the said M. A. Rushton to this Court was never heard, and is now withdrawn and abandoned as

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