South Carolina Public Service Authority v. Carolina Power & Light Co.

• Decision Date: 23 July 1964
• Docket Number: No. 18244,18244
• Citation: 137 S.E.2d 507,244 S.C. 466
• Parties: , 55 P.U.R.3d 418 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, Appellant, v. CAROLINA POWER & LIGHT COMPANY, Respondent.
• Court: South Carolina Supreme Court

Page 507

137 S.E.2d 507

244 S.C. 466, 55 P.U.R.3d 418

SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, Appellant, v. CAROLINA POWER & LIGHT COMPANY, Respondent.

No. 18244.

Supreme Court of South Carolina.

July 23, 1964.

W. D. Simpson, Moncks Corner, C. C. Grimes, Jr., Rosen & Rosen, Georgetown, for appellant.

Willcox, Hardee, Houck, Palmer & O'Farrell, Florence, A. Y. Arledge, Raleigh, N. C., for respondent.

Roberts, Jennings & Thomas, Columbia, amicus curiae.

LEWIS, Justice.

This action involves a controversy between the plaintiff, South Carolina Public Service Authority, and the defendant, Carolina Power and Light Company, as to which shall provide electric power to a new industrial plant being constructed in Georgetown County, South Carolina, by the Georgetown Textile and Manufacturing Company, Inc. The plaintiff seeks a permanent injunction restraining the defendant from rendering service to the new plant and from constructing an electric power line for such purpose. Upon a verified complaint, the lower court issued, ex parte, a temporary injunction so restraining the defendant, with leave to move on four (4) days notice for its dissolution. The defendant thereafter moved to dissolve the temporary injunction upon the ground that the action involved matters relating solely to the regulation of an electrical utility over which the court had no jurisdiction. After a hearing, the lower court sustained the contention of the defendant and dissolved the temporary injunction for lack of jursidiction. The plaintiff has appealed, and the defendant has filed 'additional sustaining grounds.'

While the appeal involves questions concerning (1) the refusal of the lower court to grant the plaintiff's request for a continuance of the hearing on the motion to dissolve the injunction, (2) the order settling the record for appeal, and (3) the refusal of the lower court to dismiss the action upon dissolving the temporary injunction for lack of jurisdiction, the basic issue for decision is whether the lower court was in error in dissolving the injunction upon the ground that the complaint failed to present a case for injunctive relief within the jurisdiction of the court. This question involves, first, an examination of the complaint to determine the nature of the cause of action alleged therein.

The plaintiff, South Carolina Public Service Authority, is an agency of the State of South Carolina, and is engaged in the production, distribution, and sale of electric power pursuant to the authority granted to it under Title 59, Chapter 1, of the 1962 Code of Laws. The defendant, Carolina Power and Light Company, is a privately owned electrical utility also engaged in the business of producing, distributing, and selling slectric power in this State.

The complaint alleges that the Georgetown Textile and Manufacturing Company, an industry now constructing a new industrial plant in Georgetown County, requested the plaintiff to supply electric service to it; that the plaintiff agreed to do so; and that the defendant thereafter, without having obtained a certificate of public convenience and necessity as required by Section 24-63 of the 1962 Code of Laws, commenced the construction of a low voltage, inadequate power line to the new industrial plant for the purpose of supplying it with electrical service and depriving the plaintiff of its customer. It is then alleged that, due to the closer proximity of the facilities of the plaintiff, the cost of connecting electrical service to the new plant will be much less for the plaintiff then for the defendant. Following the foregoing allegations, the real basis of the complaint is set forth in Paragraph 9 as follows:

'9. The construction of said line and the Defendant's attempt to render electrical service to said new industry constitutes economic waste and an illegal interference with the sale of electric power conducted by the State through this Plaintiff. The construction of said line by the Defendant without obtaining a Certificate of Public Convenience and Necessity from the Public Service Commission of the State of South Carolina is illegal and in violation of Sections 24-63, 24-66 and 24-67 of the Code of South Carolina, 1962. The acts of the Defendant are against the public policy of the State, and are detrimental to the reputation of the State for excellent electric service in connection with the vast industrial expansion now present in South Carolina.'

The plaintiff contends that the complaint states a cause of action for injunctive relief upon, basically, two grounds, namely: (1) the unlawful competition by the defendant arising from the proposed construction of its power line into non-contiguous territory without a certificate of convenience and necessity in violation of Section 24-63 of the 1962 Code of Laws, and (2) the illegal interference by the defendant with the contract for electrical service entered into between the plaintiff and its customer. The lower court held that the complaint failed to state a cause of action entitling the plaintiff to injunctive relief on the basis of interference with the performance of the alleged contract, and that the court was without jurisdiction to determine the matters upon which the charge of unlawful competition was based.

The contention of the plaintiff, that the complaint alleges, as a ground for injunctive relief, the illegal interference by the defendant with a contract for electrical service between the plaintiff and its customer, cannot be sustained. It is true that the complaint contains allegations that the plaintiff accepted the application of the customer for electrical service, and that the acts of the defendant constituted 'an attempt to deprive the plaintiff of its customer.' However, the complaint and the record before us are devoid of any factual allegations or showing from which the conclusion could be drawn that irreparable damage would result from the interference by the defendant with the alleged contractual relationship. While the complaint contains the general allegation that the plaintiff will suffer irreparable injury, there is no factual allegation to support it. This is insufficient to constitute a cause of action for injunctive relief.

The following rule is stated in 43 C.J.S. Injunctions § 182b(5)(b), at page 861: 'Generally, unless the rule is changed by statute, an injunction will not be granted unless the complaint shows that a refusal to grant the writ will work irreparable injury. It is not sufficient simply to allege that the injury will be irreparable, but the facts must be stated so that the court may see that the apprehension of irreparable injury is well founded. In view of the severity or harshness of the remedy by injunction, a strict adherence to this rule of pleading is required.' The rule is thus stated in 28 Am.Jur., Injunctions, Section 266, page 778: 'But mere allegations of the pleader's conclusion that the act or acts sought to be restrained will, if committed, cause irreparable injury or damage for which there is no remedy at law, not supported by facts showing such irreparable injury or damage, is not sufficient to make out a case for injunctive relief. The pleading should state facts to enable the court to judge whether such is the case.'

In so far as the record before us shows, a contract with only one customer is involved. No course of action on the part of the defendant is alleged. There is a complete absence of any allegation or factual showing that the plaintiff does not have an adequate and complete remedy at law for the damages sustained by reason of the interference with its contract with this one customer. Therefore, the lower court properly held that the complaint stated no cause of action for injunctive relief on the basis of the alleged interference with the contract.

This leaves for consideration the basic ground upon which injunctive relief is sought in this action. The plaintiff seeks to restrain the defendant from rendering service to the new industrial plant upon the ground that such action on the part of the defendant will constitute unlawfully competition. The sole basis of the charge of unlawful competition is that the defendant proposes to construct its power line into non-contiguous territory without a certificate of convenience and necessity in violation of Section 24-63 of the 1962 Code of Laws.

We agree with the lower court that the ground upon which the plaintiff seeks to restrain competition by the defendant involves a determination of purely regulatory matters over which the courts have no jurisdiction.

Section 14 of Article 9 of the Constitution of this State establishes The Public Service Commission and prescribes that its 'powers over all transporting and transmitting corporations, * * * shall be regulated by law.' Section 21 of Article 9 provides: 'The General Assembly shall enforce the provisions of this Article by appropriate legislation.' The foregoing constitutional provisions clearly make the regulation of electrical utilities a legislative matter and not a judicial one.

Pursuant to the foregoing constitutional mandate, the General Assembly, under Title 24, Chapter 1, of the 1962 Code of Laws, has specifically placed upon The Public Service Commission the power and duty to supervise and regulate privately owned electrical utilities, including the power to regulate the territory served by each. In doing...