Salisbury & S. Ry. Co v. Southern Power Co

• Decision Date: 17 March 1920
• Docket Number: (No. 386.)
• Citation: 102 S.E. 625
• Court: North Carolina Supreme Court
• Parties: SALISBURY & S. RY. CO. et al. v. SOUTHERN POWER CO.

102 S.E. 625

SALISBURY & S. RY. CO. et al.

v.SOUTHERN POWER CO.

(No. 386.)

Supreme Court of North Carolina.

March 17, 1920.

Walker and Allen, JJ., dissenting.

Appeal from Superior Court, Guilford County; Shaw, Judge.

On petition for rehearing. Former opinion confirmed, and petition dismissed. For former opinion, see 101 S. E. 593.

Cansler & Cansler and W. S. O'B. Robinson, Jr., all of Charlotte, for appellant.

Linn & Linn, of Salisbury, Roberson & Dalton, and Brooks, Sapp & Kelly, of Greensboro, for appellees.

BROWN, J. This cause comes before the court again on petition to rehear, granted by myself in order that I might have opportunity to make a more thorough examination of the questions presented on the record than I had last session.

Such examination has confirmed me in my former conclusion. The questions presented have been so fully and ably discussed by the CHIEF JUSTICE and Justice ALLEN, pro and con, that I will not undertake to add anything to the discussion. I will state my views briefly, but a little more fully than before.

The defendant filed an answer to the complaint, and afterwards, upon the hearing before Judge Shaw, moved to dismiss the action upon the ground that the complaint does not state a cause of action. The learned judge overruled this motion, and in so doing, I am still of opinion that he committed no error.

Assuming that all the facts stated in the complaint are true, in my judgment they make out a cause of action against the defendant which entitled plaintiffs to relief. These facts are well and correctly summarized in the opinion of the Chief Justice and need not be repeated. According to the allegations stated In the complaint, the defendant is a public service corporation engaged in business under the laws of this state in manufacturing electricity by water power and selling it over a large territory by wholesale. It has a monopoly of the hydroelectric power supply in a considerable portion of a populous section of this state.

I candidly admit that as a general proposition one public service corporation cannot be made to supply a competitor, another public service corporation of like character, with the material, necessary to enable the latter to discharge its duty to the public.

But the facts alleged in the complaint, if established upon the final hearing, take this case out of that general rule. Neither the North Carolina Public Service Company nor the Railway Company are competitors with the defendant according to my interpretation of the facts stated In the complaint. The railway company is in no sense a competitor with defendant, as it is not in the business of manufacturing electricity for sale, but uses the current it buys from the defendant solely to operate its street car service between Salisbury and Spencer. Not being a dealer in, or manufacturer of, electricity, in my opinion it cannot be considered a competitor in any sense, but so far as the defendant is concerned is a part of the general public which defendant has elected to serve, and has the right to compel defendant to furnish it with electricity as far as defendant is able to do so.

I fail to find any reason or authority to support the position that a corporation manufacturing electricity for wholesale to the public cannot be made to supply a streetcar company if it is able to do so. A corporation under certain circumstances may be as much a part of the general consuming public as an individual,

According to the facts alleged, I do not think the other plaintiff, the North Carolina Public Service Corporation, is a competitor with defendant. The plaintiff is a retailer of electricity, and engaged in supplying the citizens of Salisbury and Spencer with electricity to light their residences and for other private purposes. It cannot compete with defendant, for the latter does not undertake to supply residences, and is in every sense a wholesaler of the electric current. The plaintiff supplies no territory supplied by defendant, but buys its current from the latter, and distributes it among the inhabitants of a limited territory. While this plaintiff has power under its charter to manufacture, at instance of defendant it ceased to do so 10 years ago, and the defendant has supplied the current by contract ever since. It has for all these years elected to treat plaintiff and other similar corporations as a part of the general consuming public, and to furnish them with electricity as a means of supplying the citizens of the territory that the defendant occupies. Defendant is willing to continue doing so, provided these retail companies will pay the price demanded.

In my opinion the defendant had the right originally to confine its sales and contracts to those desiring electricity for direct I personal consumption and thereby retain control of the number of its customers,...