North Carolina Public Service Co. v. Southern Power Co.

Decision Date10 May 1922
Docket Number1927.
Citation282 F. 837
PartiesNORTH CAROLINA PUBLIC SERVICE CO. et al. v. SOUTHERN POWER CO. [a1]
CourtU.S. Court of Appeals — Fourth Circuit

John W Davis, of New York City, and Aubrey L. Brooks, of Greensboro N.C. (King, Sapp & King and C. A. Hines, all of Greensboro N.C. and Dred Peacock, of High Point, N.C., on the brief) for appellants.

W. S. O'B. Robinson, Jr., of Charlotte, N.C., and William P. Bynum, of Greensboro, N.C. (E. T. Cansler, of Charlotte, N.C., on the brief), for appellee.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

This action was commenced in the superior court of Guilford county, N.C., on September 3, 1920. The complaint alleged ownership and operation by the plaintiff North Carolina Public Service Company of a street railway system and of an electric light and power system, furnishing light for the streets and private houses and operating the machinery of industrial enterprises in the cities of Greensboro and High Point, N.C., under municipal franchises; the ownership and operation by the defendant, Southern Power Company, a New Jersey corporation, of large hydroelectric plants on the streams of the state of North Carolina, and also steam plants, generating in the aggregate about 300,000 electric horse power, which it sells as a public service corporation to factories, municipalities, and to other public corporations for resale; contracts by defendant with plaintiff North Carolina Public Service Company, in December, 1909, and January, 1910, to furnish current necessary for its needs at Greensboro and High Point for the term of 10 years; the refusal by the defendant to enter into a new contract to furnish North Carolina Public Service Company the electric current necessary for its plants, except for a much shorter period and at a rate much in excess of the former charge, and in excess of the rates charged for like services rendered to other purchasers under the same or substantially similar conditions; notice by defendant that it would cut off its current at Greensboro and High Point; the inability of the North Carolina Public Service Company and the cities of Greensboro and High Point to obtain current from any other source, and irreparable loss that would result to North Carolina Public Service Company and to the cities and their citizens from being deprived of light and power; the readiness of the North Carolina Public Service Company to pay any reasonable price for the current required, furnished without discrimination as to rates and service. The relief asked was mandamus to compel the Southern Power Company 'to continue to furnish electric current and power to the Public Service Company, through its substations at Greensboro and High Point, to operate the street car lines in both said cities, and for the use and benefit of the municipalities and the citizens thereof for light and power, as is now being furnished.'

On September 8, 1920, defendant filed a petition for removal to the United States District Court of the Western District of North Carolina, and on September 15, 1920, filed a transcript of the record in the federal court. The motion to remove was refused by the state court on the ground that under the allegations of the complaint 'a writ of mandamus may properly issue,' and therefore the United States District Court was without jurisdiction. On appeal the state Supreme Court affirmed the judgment, two of the justices dissenting. 180 N.C. 335, 104 S.E. 872. On October 23, 1920, defendant answered in the federal court. On December 13, 1920, the state court on the pleadings granted a judgment of mandamus as prayed for, requiring the Southern Power Company to furnish the necessary current and providing:

'The rates and terms of payment for said electric current shall be such as now exist between plaintiff North Carolina Public Service Company and defendant, or as same may hereafter be fixed and determined by the North Carolina Corporation Commission.' Pending appeal from this judgment to the state Supreme Court, plaintiffs moved in the United States District Court to remand the cause to the state court. The motion was refused, and subsequently the District Judge by order enjoined further proceedings in the state court. At the trial the federal court, after refusing plaintiffs' motion for judgment on the pleadings, heard testimony and decreed that the plaintiffs had no right to require the Southern Power Company to furnish current to the North Carolina Public Service Company for resale to the cities of Greensboro and High Point or to its other customers; that the North Carolina Public Service Company did have the right to require such service for its motive power in operating its street railway system in Greensboro and High Point; that to prevent the great loss and inconvenience which would result from the sudden stoppage of the service Southern Power Company should continue to furnish the current as theretofore for the period of six months upon terms specified in the decree.

Error is assigned in refusing to remand the cause and in enjoining further proceedings in the state court. The District Court of the United States has no original jurisdiction in mandamus, and therefore a mandamus proceeding is not removable. Rosenbaum v. Bauer, 120 U.S. 450, 7 Sup.Ct. 633, 30 L.Ed. 743. In our opinion, however, the complaint stated a case for which injunction, not mandamus, was the proper remedy. The office of mandamus is to compel the performance of a plain and positive duty. It is never granted in anticipation of an omission of duty, but only after actual default. Injunction is the proper remedy for threatened violation of a duty, entailing an injury for which the law gives no adequate compensation. Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623; Exparte Cutting, 94 U.S. 14, 24 L.Ed. 49. The numerous authorities distinguishing the two remedies are set out in the opinions in North Carolina Public Service Co. v. Southern Power Co., 180 N.C. 335, 104 S.E. 872. The complaint alleges that defendant had notified North Carolina Public Service Company that it would cut off its current at the termination of the contract, not that defendant had already done so. It seems to us, therefore, that the suit was actually for injunction against threatened injury. Being a suit of a civil nature in equity, no state practice or statute or adjudication could deprive a citizen of another state of his right to have it tried by the courts of the United States. Barrow v. Hunton, 99 U.S. 80, 25 L.Ed. 407; Mississippi Mills v. Cohn, 150 U.S. 202, 14 Sup.Ct. 75, 37 L.Ed. 1052; Smyth v. Ames, 169 U.S. 466, 18 Sup.Ct. 418, 42 L.Ed. 819; Harrison v. St. Louis & San Francisco R. Co., 232 U.S. 318, 34 Sup.Ct. 333, 58 L.Ed. 621, L.R.A. 1915F, 1187; C. & O. Ry. Co. v. McCabe, 213 U.S. 207, 217, 29 Sup.Ct. 430, 53 L.Ed. 765; Colleton M. & M. Co. v. Savannah River Lumber Co. (C.C.A. 4th Circuit) 280 F. 358.

Upon the filing of the record in the federal court on September 15, 1920, that court acquired jurisdiction of the question of removability, and with it the power to protect its jurisdiction by injunction. Any action thereafter taken by the state court was subject to the exercise by the federal court of its jurisdiction to decide the question of removability. C. & O. Ry. Co. v. McCabe, 213 U.S. 217, 29 Sup.Ct. 430, 53 L.Ed. 765. It follows that the decree of the Supreme Court of North Carolina on November 10, 1920, holding the cause not removable, was not res judicata between the parties, and was in no way binding on the District Court. The District Court was therefore right in refusing to remand the cause, and in enjoining further proceedings in the state court.

On the merits the question is whether under the pleadings and proof the Southern Power Company, as a public service corporation, owes the duty to the North Carolina Public Service Company to furnish electric current on any terms for street lights, the lights in private dwellings, and power for the manufacturing plants which the North Carolina Public Service Company has contracted with the cities of Greensboro and High Point and manufacturing plants to furnish. The Southern Power Company by its charter is authorized, among other things:

'To buy, sell, operate or lease pole lines, erect poles, string wires thereon, or on poles of other individuals or corporations, * * * and to use the same, either for the transmission of electric current for delivery to consumers on such lines or for transmission of current to independent vendors thereof, and to sell or lease to other individuals or corporations the right to string wires on or attach electric wires to any or all poles so erected, owned, or leased, and to use such lines, both as through lines and for local delivery.'

In its answer the defendant admits that it has, in a few instances, entered into special contracts with other public service companies to sell them limited quantities of electricity at the prices and for the periods and upon the terms and conditions stated in such special contracts; that in August, 1908, it entered into a contract with the Salisbury & Spencer Railway Company, and that about 1914 it entered into a contract with the Southern Public Utilities Company for the sale of electricity to it, which electricity said Public Utilities Company is reselling for domestic light and power purposes. But it denies that it has in any way dedicated its property or business to the use or purpose of selling electricity to other public service corporations for resale and distribution.

By the law of North Carolina hydroelectric companies are declared to be public service corporations, subject to the laws of the state regulating public service corporations, and...

To continue reading

Request your trial
36 cases
  • State v. Local No. 8-6, Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO
    • United States
    • Missouri Supreme Court
    • September 29, 1958
    ...to furnish service or supply a commodity.' Among the cases cited in support of this statement is North Carolina Public Service Co. v. Southern Power Co., 4 Cir., 282 F. 837, 33 A.L.R. 626, writ of certiorari dismissed 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413. See also 15 A.L.R.2d Our genera......
  • State ex rel. Utilities Com'n v. Nantahala Power and Light Co.
    • United States
    • North Carolina Supreme Court
    • July 3, 1985
    ...and regulation. N.C.G.S. § 62-2; Public Service Co. v. Power Co., 179 N.C. 18, 101 S.E. 593 (1919); North Carolina Public Service Co. v. Southern Power Co., 282 F. 837 (4th Cir.1922), cert. denied, 263 U.S. 508, 44 S.Ct. 164, 68 L.Ed. 413 (1924). When a public utility is affiliated with oth......
  • Western Colorado Power Co. v. Public Utilities Commission
    • United States
    • Colorado Supreme Court
    • February 14, 1966
    ...authority to support the classification of a wholesaler of energy to distributors as a public utility. North Carolina Public Service Co. et al. v. Southern Power Co., 4 Cir., 282 F. 837; Boone County Rural Electric Membership Corporation et al. v. Public Service Company of Indiana et al., 2......
  • Arcola Sugar Mills Co. v. Houston Lighting & P. Co.
    • United States
    • Texas Court of Appeals
    • June 12, 1941
    ...Arts. 1436 and 1438, R.C.S.T.; 18 Am.Jur., 675-677, 694-696, 667-669, 673, 674, 733-736; 44 A.L. R. 741; North Carolina, etc., v. Southern Power Co., 4 Cir., 282 F. 837, 33 A.L.R. 626; Borden v. Trespalacios, Rice & Irr. Co., 98 Tex. 494, 86 S.W. 11, 107 Am.St.Rep. 640; West v. Whitehead, T......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT