Holmes Electric Co. Inc v. Carolina Power & Light Co
Decision Date | 20 November 1929 |
Docket Number | (No. 284.) |
Citation | 150 S.E. 621,197 N.C. 766 |
Court | North Carolina Supreme Court |
Parties | HOLMES ELECTRIC CO., Inc., v. CAROLINA POWER & LIGHT CO. |
[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 . It further appeared that the plaintiff corporation had listed no taxes for property in Cumberland county.
The judgment was as follows:
From the foregoing judgment, the plaintiff appealed.
Brooks, Parker, Smith & Wharton, of Greensboro, and C. Murchison Walker, of Fayetteville, for appellant.
W. H. Weatherspoon and Pou & Pou, all of Raleigh, and Rose & Lyon, of Fayetteville, for appellee.
BROGDEN, J. (1) Can a plaintiff institute a mandamus proceeding returnable before a superior court judge, appear at the hearing, and, after a full hearing and argument by counsel representing plaintiff and defendant, and after judgment has been tendered by the defendant, thereupon demand a jury trial upon issues of fact raised by the pleadings?
(2) Was the judgment denying the mandamus correct?
The right of trial by a jury is guaranteed by the Constitution. Article 4, § 13, of the Constitution of North Carolina provides: "In all issues of fact, joined in any court, the parties may waive the right to have the same determined by a jury; in which case the finding of the judge upon the facts shall have the force and effect of a verdict by a jury." The Constitution, of course, does not prescribe the method by which a jury trial may be waived. Such provision is made by statute. C. S. § 568, provides three methods of waiver.
A mandamus proceeding, however, is governed by C. S. § 868, when the relief sought is other than a money demand. This statute provides, in substance, that the summons must be made returnable before a judge of the superior court at chambers, and upon the return date The plain meaning of the statute is that the judge has the power to hear and determine the law and the facts; but, if an issue of fact is raised in the pleadings, and either party...
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