Holmes Electric Co. Inc v. Carolina Power & Light Co, (No. 284.)

• Docket Nº: (No. 284.)
• Citation: 150 S.E. 621, 197 N.C. 766
• Case Date: November 20, 1929
• Court: United States State Supreme Court of North Carolina

150 S.E. 621
(197 N.C. 766)

HOLMES ELECTRIC CO., Inc.,
v.
CAROLINA POWER & LIGHT CO.

(No. 284.)

Supreme Court of North Carolina.

Nov. 20, 1929.

[Ed. Note.—For other definitions, see Words and Phrases, First Series, Apt Time.]

Appeal from Superior Court, Cumberland County; Cranmer, Judge.

Action by the Holmes Electric Company, Inc., against the Carolina Power & Light Company. Judgment for defendant, and plaintiff appeals. Affirmed.

See, also, 150 S. E. 624.

The plaintiff alleged that it is a public service corporation and had constructed and maintained a system of poles and wires and other necessary things to transmit, deliver, and sell electric current to persons, firms, and corporations living or having places of business outside of the corporate limits of the city of Fayetteville in Cumberland county, and running in every direction therefrom a distance of approximately 9 miles, except the territory embraced within the corporate limits of the town of Hope Mills. On February 7, 1929, the plaintiff made application to defendant to be allowed "to purchase from said defendant primary electric current in the approximate amount of 20, 000 K. W. H. per month, such electric current to be supplied by the defendant and taken by the plaintiff at or near a substation built and maintained for the delivery of current by the defendant, near the Victory Mills, near said City of Fayetteville, " etc. Plaintiff was desirous of purchasing current for the purpose of resale or redistribution to other parties within the area described.

The defendant refused to furnish electric current for redistribution upon the ground that such resale of current would constitute the plaintiff a competitor of the defendant or of the city of Fayetteville with which the defendant had a contract for the sale of electric current for use and redistribution by said city, and, further, that to furnish current to the plaintiff under the circumstances would constitute a breach of the contract existing between the defendant and the city of Fayetteville.

There was evidence to the effect that the plaintiff did not for the years 1927 and 1928, nor for any other years, file with the Corporation Commission an annual report required to be filed by all public utilities operating in the state of North Carolina, nor has the plaintiff filed with or secured the approval of the commission of rates to be charged by it. There was further evidence that the plaintiff had not filed with the Department of Revenue reports required by the Revenue Act. of 1927 (Pub. Laws 1927, c. 80. § 203). It further appeared that the plaintiff corporation had listed no taxes for property in Cumberland county.

The judgment was as follows:

"This cause coming on to be heard at Fayetteville, N. C, on the 27th day of March, 1929, having been continued by consent until this day, and being heard upon the pleadings, affidavits and exhibits filed, the court finds the following facts:

"1. Plaintiff, Holmes Electric Company, Inc., is a corporation doing business in the City of Fayetteville, N. C, under the powers granted in its charter, as appears of record, and the defendant, Carolina Power & Light Company, is a public service corporation, doing business as such, and it owns, operates

[150 S.E. 622]

and maintains plants, transmission lines and other equipment for the generation and distribution of electric power.

"2. That the plaintiff owns certain disconnected lines of poles and wires near the City of Fayetteville, N. C, over which the City of Fayetteville transmits and delivers electric current to various consumers outside of the corporate limits of the City of Fayetteville, and the City of Fayetteville, through its Public Works Commission, collects and receives the revenue from such consumers, and the plaintiff company is not now and never has been, a dlstributory of electric current, or electric power, and has only maintained the lines over which the current is delivered and charged various tap fees therefor. That plaintiff company has demanded from the defendant that the defendant deliver to the plaintiff electric current to be used solely for redistribution, and as such the plaintiff is not a consumer of electric current but expects to deliver such current to consumers at a profit.

"3. That the Carolina Power & Light Company has never entered the field of delivering current for redistribution to persons, firms or corporations who expected to use the same solely for redistribution at retail, but it has only sold its current to municipal corporations for redistribution among the citizens of the municipality and community and to large manufacturing corporations who purchased electric current in large quantities for industrial purposes and for redistribution to its employees.

"4. That if the plaintiff were furnished electric current by the defendant, same would be used by the plaintiff in competition with the defendant and the City of Fayetteville, with whom the defendant has a contract, as set out...