Mullen v. Town of Louisburg

• Decision Date: 21 March 1945
• Docket Number: 449
• Citation: 33 S.E.2d 484,225 N.C. 53
• Parties: MULLEN v. TOWN OF LOUISBURG et al.
• Court: North Carolina Supreme Court

33 S.E.2d 484

225 N.C. 53

MULLEN v. TOWN OF LOUISBURG et al.

No. 449

Supreme Court of North Carolina

March 21, 1945

Civil action in which plaintiff seeks injunctive relief.

Defendant Town of Louisburg owns and operates an electric light plant for the benefit of its citizens. Diesel engines furnish the motor power necessary to generate the required electricity. The plant has paid the cost of its operation and in addition has contributed a substantial sum to the town treasury.

For years citizens have advocated a change of policy. They proposed that the Town cease generating its electricity and in lieu thereof purchase wholesale the required supply from the Carolina Power & Light Company (hereafter referred to as the Power Company). There was strong opposition to the proposed change. Until recently a majority of the Town Board has opposed the change. A recent appointment to fill a vacancy has changed the balance of power within the Board.

On 20 September 1944, the Town Board, by resolution, requested the Power Company to make a survey and appraisal of electric light and power properties of the Town.

On 3 November 1944, a representative of the Power Company appeared before the Board at a regular meeting and proposed that the Town sign a tendered application for the purchase of electric energy and power from the Power Company for redistribution to its customers through its local plant in lieu of generating same as theretofore. As a part of the same general plan, the Power Company proposed that the Town grant it a franchise for the use of its streets by the Power Company in transmitting and distributing electric energy.

At said meeting the Town Board authorized the mayor and clerk to execute the proposed application for the purchase of electric energy and passed on its first reading an ordinance granting a franchise for the use of its streets by the Power Company.

On 13 November 1944, the Town gave public notice that on 16 December 1944 it would offer three of its four Diesel engines for sale at public auction to the highest bidder.

On 6 December 1944, plaintiff instituted this action in which he seeks to restrain the sale of the Diesel engines, the granting of the proposed franchise, and the purchase of electric energy wholesale from the Power Company for redistribution. In his complaint he alleges that the sale of the engines constitutes a sale of its light plant and is unauthorized and unlawful until and unless approved by vote of the electorate of the Town. He also alleges that the Town Commissioners have disregarded positive provisions of the law, ignored the wishes of the people, proceeded without due investigation, acted arbitrarily, breached campaign promises and otherwise abused the discretion reposed in them by law.

On plaintiff's application, Carr, J., on 6 December 1944 issued a temporary restraining order and notice to show cause returnable before Harris, J., 22 December. On the return date of the notice the Power Company appeared and moved that it be made a party defendant and be allowed to defend as such. The motion was granted and an order making the Power Company a party defendant was duly signed. Plaintiff excepted. Thereupon Harris, J., continued the hearing on the notice to show cause to be had before Williams, J., 27 January 1945.

When the cause came on to be heard before Williams, J., pursuant to said continuance, he found certain facts, made certain conclusions of law, and entered judgment dissolving the temporary restraining order and dismissing the action. Plaintiff excepted and appealed.

G. M Beam, of Louisburg, and Smith, Leach & Anderson, of Raleigh, for plaintiff appellant.

Malone & Malone, of Louisburg, for defendant appellee Town of Louisburg.

W. L. Lumpkin, of Louisburg, and A. Y. Arledge, of Raleigh, for defendant appellee Carolina Power & Light Company.

BARNHILL Justice.

Plaintiff has properly preserved and brought forward his exception to the order of Harris, J., making the Power Company a party defendant. In our opinion the exception is meritorious and must be sustained.

A third party, before he will be permitted to become a party defendant in a pending action, must show that he has some legal interest in the subject matter of the litigation. His interest must be of such direct and immediate character that he will either gain or lose by the direct operation and effect of the judgment, and it must be involved in the subject matter of the action. One whose interest in the matter in litigation is not a direct or substantial interest, but is an indirect, inconsequential, or a contingent one cannot claim the right to defend. 39 Am.Jur. 900, 935.

Although the enforcement of the judgment, when rendered, might benefit or prejudice the applicant, this does not entitle him to intervene as a defendant if its effect is indirect, as where the party for or against whom the judgment is rendered may, because of it, become more or less able to satisfy some obligation existing from him to the intervener. 39 Am.Jur. 935; Cleveland R. Co. v. North Olmsted, 130 Ohio St. 144, 198 N.E. 41, 101 A.L.R. 426; School Dist. of City of Ferndale v. Royal Oak Tp. School Dist., 293 Mich. 1, 291 N.W. 199, 127 A.L.R. 661; Wightman v. Evanston Yaryan Co., 217 Ill. 371, 75 N.E. 502, 108 Am.St.Rep. 258, 3 Ann.Cas. 1089; Grand Rapids v. Consumers' Power Co., 216 Mich. 409, 185 N.W. 852.

Creditors and distributees of an estate may be materially affected by a judgment against the administrator, as would taxpayers by a judgment against the municipality. Yet, in the absence of peculiar circumstances, it would hardly be contended that these would be entitled to appear, become parties to the action, and defend. The Power Company is in no better position than one of these. Its only interest in the litigation rests upon the fact that the judgment rendered may or may not prevent the defendant Town from consummating the proposed transactions which have not yet reached a contract status. This is not such an interest as will support the order entered.

Counsel for plaintiff stressfully contend that the Town Commissioners acted in bad faith and abused the discretion reposed in them by law in the many respects pointed out in their brief. This question has passed the point of debate. The court below expressly found as a fact: 'That in all its acts and proceedings in connection with the matters or things in controversy herein the said Board of Commissioners of the Town of Louisburg was acting in good faith without abuse of any discretionary power or authority conferred upon them by law. ' To this finding plaintiff did not except. Hence the finding is presumed to be supported by evidence. Joyner v. Stancill, 108 N.C. 153, 12 S.E. 912; Hawkins v. Richmond Cedar Works, 122 N.C. 87, 30 S.E. 13; Sturtevant Co. v. Selma Cotton Mills, 171 N.C. 119, 87 S.E. 992; Hickory v. Catawba County, 206 N.C. 165, 173 S.E. 56; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601.

It is true that in appeals of this character from an order granting or denying injunctive relief, the findings of fact made by the court below are not conclusive. Smith v. Bank, 223 N.C. 249, 25 S.E.2d 859. Yet is does not behoove us to seek for cause to upset or reverse a finding the correctness of which appellant at least impliedly concedes when he fails to except thereto.

G. S. s 143-129 provides that neither any institution of the State nor any county, city, or town shall award a contract for the purchase of apparatus, supplies, materials, or equipment requiring an estimated expenditure of public money in an amount equal to or in excess of $1,000 except to the lowest responsible bidder after due advertisement as provided in the Act.

It is conceded that the proposed contract for the purchase of electricity involves a sum in excess of $1,000. Is the purchase wholesale of electric current from a public utility for redistribution through the defendant's local plant a 'letting' of a public contract for 'supplies' within the meaning of the Act?

While there is a conflict of judicial opinion on this question, the great weight of authority is to the effect that such contracts are not within the intendment of such requirement. Anno. 128 A.L.R. 168. Indeed some, if not all, the cases cited contra are not in point either factually or by reason of the provisions of the applicable statute. Clearly the terms 'apparatus', 'materials', and 'equipment' denote particular types of tangible personal property and could not be construed to include electric energy. Hence, if the purchase of a required quantity of electricity is within the purpose and intent of the Act, it is by virtue of the use of the term 'supplies.' As this term is used in conjunction with other terms having a particular connotation, it might be said that its meaning as used in the statute is confined to property of like kind and nature.

Conversely, given its broadest and most comprehensive meaning, 'supplies' are things supplied, the quantity or amount of a commodity at hand, needed or desired. And 'commodity' means that which affords convenience or profit, especially in commerce. Webster's New International Dictionary. Thus it might be construed to include electricity furnished for redistribution.

'Hundreds of words in the English language bear more than one meaning. ' Few words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension.' ' Crawford, Statutory Construction, 276, Sec. 174.

It is the duty of the court then to find the legislative intent. In so doing, the context of the Act and the spirit and reason of the law must be considered, for it is the intention of the Legislature, as expressed in the statute, which controls. Crawford, supra, 292. Case...