Clarke-Washington Elec. Membership Corp. v. Alabama Power Co.
| Decision Date | 21 September 1961 |
| Docket Number | 1 Div. 938,CLARKE-WASHINGTON |
| Citation | 133 So.2d 488,272 Ala. 598 |
| Parties | , 41 P.U.R.3d 227 ELECTRIC MEMBERSHIP CORPORATION v. ALABAMA POWER COMPANY. |
| Court | Alabama Supreme Court |
C. B. Gillmore, Adams, Gillmore & Adams, Grove Hill, J. M. Williams, Jr., Rushton, Stakely & Johnston, Montgomery, and Jos. C. Swidler, Nashville, Tenn., for appellant.
W. Johnson McCall, Thomasville, Martin, Vogtle, Balch & Bingham, Carey J. Chitwood and Alvin W. Vogtle, Jr., Birmingham, for appellee.
This is an appeal from a decree sustaining the demurrer of the Alabama Power Company to the bill of complaint as amended filed by Clarke-Washington Electric Membership Corporation, a corporation, in the Circuit Court of Clarke County, in Equity. The complainant seeks to enjoin the respondent from duplicating certain electric distribution lines of the complainant. It seems from the record that the City of Thomasville intervened but did not demur to the bill of complaint, as amended.
The facts alleged in the bill are substantially as follows. The complainant is a corporation organized and incorporated under the Electric Membership Corporation Act of the State of Alabama (Chapter 2, Title 18, Code of 1940). Complainant was subsequently converted to a cooperative under the provisions of Chapter 3, Title 18, Code of 1940.
The respondent, Alabama Power Company, is a public utility corporation organized under the laws of the State of Alabama.
The complainant is engaged in the business of selling and distributing electrical energy to its members, customers, patrons in the counties of Clarke, Washington, Monroe, Baldwin and Wilcox. It has 2419 miles of distribution lines and approximately 8327 customers. Its distribution system cost in excess of four million dollars.
The distribution lines of the complainant in the aforesaid counties have been constructed, maintained and operated in territory which at no time has been served by the distribution lines of the Alabama Power Company, with the exception of certain customers initially served by the Interstate Utilities Company, whose distribution lines in the Northwest portion of Washington County were sold to the complainant. None of the customers, patrons or members of the complainant prior to their connection to the distribution lines of the complainant were receiving central power service and electrical energy had not been made available to said customers, patrons and members by the Alabama Power Company or any other utility.
The complainant, under the statutes authorizing its incorporation and under permits obtained from Clarke County and the State Highway Commission, had the right and privilege to erect its distribution lines upon the public highways, roads and other public ways of the county. Pursuant to this authorization the complainant, beginning in 1940 and prior to February 24, 1959, erected distribution lines in an area south and west of the corporate limits of the City of Thomasville at a cost of $15,000 to deliver electrical energy to approximately 113 members in said area. This area is referred to in the bill of complaint as the 'extended area.' The members and customers of the complainant within the extended area did not and could not receive electrical energy from any source until the same was provided by the complainant. The extended area for many years has constituted and now constitutes an area whose electrical energy requirements have been served exclusively by the complainant and no portion of which has been served by the respondent.
In or about the years 1946-1947 the respondent agreed with the complainant that the territory lying south of the corporate limits of the City of Thomasville, along U. S. Highway 43, and the territory west of the corporate limits of the City of Thomasville lying along the old Grove Hill-Choctaw County (Choctaw Corner) public road should constitute territory, or service area, to be served exclusively by the complainant.
The electrical energy which complainant sells and delivers to its customers over its distribution system, including its distribution system within the extended area, is purchased wholesale from the respondent, under a contract dated May 20, 1953, which contains the following provision:
'Duplication:
'The Consumer shall not sell the energy purchased from the Company hereunder to any person, firm, corporation, association or to anyone for resale except with the written consent of the Company.'
On February 24, 1959, by an Act approved on the same date, Laws 1959, p. 99, the corporate limits of the City of Thomasville were extended to embrace the area described in the bill of complaint, as amended, and identified as the 'extended area', and to embrace other areas which are not involved in this litigation.
Reference to Exhibit 'A' discloses that the corporate limits of the City of Thomasville were extended in a long narrow strip (lying along the highway) for a distance of some three miles to the south, as well as being extended to the northwest of the city, and all of which is embraced in the extended area as defined in the bill, and which constitutes the area which is in dispute in this litigation.
The Alabama Power Company had the opportunity to construct its distribution lines into the area served by the complainant and to serve the inhabitants thereof prior to the construction of the distribution system of the complainant, but failed to do so. It does not now have a certificate for service within the extended area.
The complainant is performing a necessary and useful service in making available electrical energy to its members, patrons and customers who have been unable to obtain electrical energy elsewhere. The system has been operated in an efficient and workman-like manner.
On March 25, 1959, representatives of the Alabama Power Co. informed the complainant that the Alabama Power Co. wished to purchase the distribution system of the complainant within the extended area and that if the complainant did not sell said distribution system to the respondent, the respondent would duplicate the distribution system of the complainant within the extended area in order to furnish electrical energy to the present customers, patrons and members of the complainant. The complainant declined to sell its distribution system within the extended area to the Alabama Power Co.
The construction of an electrical distribution system within the extended area, to duplicate the distribution lines of the complainant, and to serve such customers of the complainant as may request service from the respondent is unfair, unreasonable and unjust and such proposed practice will result in great economic loss and irreparable injury to the complainant and will be against and contrary to the general public welfare.
The bill of complaint alleges that the construction of a distribution system within the extended area to duplicate the distribution system of the complainant would not be an ordinary extension of the existing electrical system of the Alabama Power Co. made in its usual course of business. The Alabama Power Co. has not made application to the Alabama Public Service Commission for a certificate of convenience and necessity to authorize the respondent to duplicate the distribution system of the complainant within the extended area. Irreparable harm, damage and injury will follow and be done to the complainant unless the acts and conduct of the respondent, complained of, are enjoined. Complainant prays that the respondent be enjoined from duplicating the lines of the complainant within the extended area and that the respondent be enjoined from delivering electrical energy to any persons within the extended area who can obtain electrical energy from the distribution lines of the complainant.
I. It is seriously insisted by the appellee that the appellant has no standing to require the appellee to secure a certificate of convenience and necessity before extending its lines into the territory annexed to the City of Thomasville. The idea is that the present bill should have been instituted either by the Alabama Public Service Commission or by the State of Alabama through its properly qualified officers. We do not believe as a general principle that the legislature intended to enact a law under which the appellant and others similarly situated might be incorporated with certain rights common to corporations including the right of eminent domain and then was to be left defenseless and without the right to invoke the ordinary remedies of the courts of the state. It seems to us to hold otherwise would render completely nugatory and meaningless the words in the charter of appellant 'to sue and be sued'. As we see it the question now before ...
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