State ex rel. North Carolina Utilities Commission v. Casey

• Decision Date: 11 January 1957
• Docket Number: No. 318,318
• Citation: 96 S.E.2d 8,245 N.C. 297
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina ex rel. NORTH CAROLINA UTILITIES COMMISSION v. Floyd CASEY, Jr., Robert S. Sullivan and others, Protestants, as shown in the record.

Page 8

96 S.E.2d 8

245 N.C. 297

STATE of North Carolina ex rel. NORTH CAROLINA UTILITIES COMMISSION v. Floyd CASEY, Jr., Robert S. Sullivan and others Protestants, as shown in the record.

No. 318

Supreme Court of North Carolina.

Jan. 11, 1957

Jones, Reed & Griffin, Kinston, for protestants-appellants.

Charles F. Rouse, Raleigh, for Carolina Power & Light Co., appellee.

George B. Greene, City Atty., Kinston, amicus curiae.

DENNY, Justice.

The City of Kinston is not a formal party to this proceeding. However, in addition to the facts found by the Commission, it appears from the evidence introduced in the hearing below that the City of Kinston serves through its electric distribution system approximately 8,700 customers within its corporate limits, and about 2,400 customers outside its corporate limits. It further appears, if the agreement entered into by and between the City of Kinston and the Power Company on 20 January 1955 is consummated, it will mean the transfer of 238 customers of the Power Company who reside in the Spence Drive and Lawrence Hill Sections to the City of Kinston.

It is conceded by the City of Kinston, appearing by counel amicus curiae, and by the Power Company, that the City and the Power Company are equally equipped and qualified to furnish electric power and energy to the citizens living in the Spence Drive and Lawrence Hill areas.

In addition to the payment of the sum of $20,000 by the City of Kinston to the Power Company for the purchase and transfer of the facilities referred to herin, the City as a further consideration therefor, according to the contract, has agreed to give the Power Company an extension of its present franchise or permit for a period of thirty years for the continued maintenance and operation of certain of its power lines along and across certain designated streets and other public places within the corporate limits of the City of Kinston, which lines serve the Power Company's substations located in or near the City of Kinston.

It also appears from the record in this proceeding that since the Spence Drive and Lawrence Hill Sections were incorporated within the corporate limits of the City of Kinston in 1952, the City has expended approximately $100,000 for water, sewer, and other municipal improvements within said areas.

The City of Kinston does not concede the right of the Power Company to serve customers within its corporate limits without a franchise from the City, and the Power Company does not concede that the action of the City by incorporatin the areas involved within its corporate limits, canceled or abrogated its right to continue its service in said areas. Consequently, in order to avoid a legal controversy between the parties, the agreement involved in this proceeding was entered into.

In our opinion, this appeal turns upon the answer to this question: Does the Power Company, with the consent and approval of the Commission, have the right to sell the facilities involved herein for the consideration set forth in its agreement with the City of Kinston, and thereby permit the City of Kinston to assume the obligation for meeting the public convenience and necessity for the service heretofore rendered by the Power Company? This question, in our opinion, must be answered in the affirmative.

G.S. § 62-27 provides: 'The Utilities Commission shall have general power and control over the public utilities and public service corporations of the State, and such supervision as may be necessary to carry into full force and effect the laws regulating the companies, corporations, partnerships, and individuals hereinafter referred to, and to fix and regulate the rates charged the public for service, and to require such efficient service to be given as may be reasonably necessary.'

In addition to the powers given to the Commission in Chapter 62 of the General Statutes of North Carolina, the General Assembly has expressly given the Commission certain implied powers as follows: 'The Utilities Commission shall also have, exercise, and perform all the functions, powers, and duties and have all the responsibilities conferred by this article, and all such other powers and duties as may be necessary or incident to the proper discharge of the duties of its office.' G.S. § 62-29.

G.S. § 62-96 provides: 'Upon finding that public convenience and necessity are no longer served, or that there is no reasonable probability of a utility realizing sufficient revenue from the service to meet its expenses, the Commission shall have power, after petition, notice and hearing, to authorize by order any utility to abandon or reduce its service or facilities.'

In our opinion, these statutes give the Commission not only the authority but impose upon it the duty to pass upon such contracts as the one under consideration and to determine whether or not it is in the public interest to permit their consummation.

'The doctrine of convenience and necessity has been...