State ex rel. Utilities Commission v. Woodstock Elec. Membership Corp.

• Decision Date: 06 January 1970
• Docket Number: No. 47,47
• Citation: 171 S.E.2d 406,276 N.C. 108
• Parties: , 82 P.U.R.3d 81 STATE of North Carolina ex rel. UTILITIES COMMISSION and Virginia Electric and Power Company v. WOODSTOCK ELECTRIC MEMBERSHIP CORPORATION and North Carolina ElectricMembership Corporation.
• Court: North Carolina Supreme Court

Page 406

171 S.E.2d 406

276 N.C. 108, 82 P.U.R.3d 81

STATE of North Carolina ex rel. UTILITIES COMMISSION and Virginia Electric and Power Company v. WOODSTOCK ELECTRIC MEMBERSHIP CORPORATION and North Carolina

ElectricMembership Corporation.

No. 47.

Supreme Court of North Carolina.

Jan. 6, 1970.

Edward B. Hipp and Larry G. Ford, Raleigh, Commission Attys., for North Carolina Utilities Commission.

Joyner, Moore & Howison, Raleigh, for Virginia Electric and Power Co.

LAKE, Justice.

G.S. § 62--110.2 was enacted in 1965. Prior to its enactment, electric membership cooperatives, such as Woodstock, and investor-owned public utility companies, such as VEPCO, were free to compete in the rural portions of this State, in the absence of contractual restrictions upon such right, irrespective of the fact that such competition resulted in substantial duplication of power lines and facilities. State ex rel. Utilities Commission v. Lumbee River Electric Membership Corp., 275 N.C. 250, 166 S.E.2d 663; Blue Ridge Electric Membership Corp. v. Duke Power Co., 258 N.C. 278, 128 S.E.2d 405; Pitt & Greene Electric Membership Corp. v. Carolina Power & Light Co., 255 N.C. 258, 120 S.E.2d 749; Carolina Power & Light Co. v. Johnston County Electric Membership Corp., 211 N.C. 717, 192 S.E. 105. It is not contended that there is any contract of either supplier involved in this proceeding which restricts its right to compete for the business of potential users of its service within the six territories in question. Thus, prior to the Act of 1965, G.S. § 62--110.2, neither Woodstock nor VEPCO had a monopoly upon the right to sell electric power to the potential users of such power in the six territories here in question, or to any class of those users.

The Act of 1965 did not, without more, alter this situation. By its terms, G.S. § 62--110.2(b), there was conferred upon each electric supplier in the State, i.e., upon both Woodstock and VEPCO, the right, in territories outside of municipalities, to serve all 'premises' being served by it on 20 April 1965, and the right to serve 'premises' initially requiring service after that date, located within 300 feet of a line of such supplier and not in a territory assigned by the Utilities Commission to a different supplier, pursuant to G.S. § 62--110.2(c). However, all parts of all six of the territories here in controversy lie more than 300 feet from the line of any electric supplied. Under the provisions of the Act, G.S. § 62--110.2(b), Clauses (5) and (10), any 'premises' within the territories here in question could, prior to such an assignment of such territory by the Utilities Commission, have been served by any supplier chosen by the user, and service of such 'premises' by any other supplier was prohibited. State ex rel. Utilities Comm. v. Lumbee River Electric Membership Corp., supra.

Thus, prior to the enactment of G.S. § 62--110.2, Woodstock never had any exclusive right to serve any user upon any 'premises' within any territory here in controversy. After the effective date of G.S. § 62--110.2, and prior to the assignment by the Utilities Commission out of which this appeal arises, Woodstock had no right whatever to serve any such user unless chosen by such user. It obviously follows that the assignment, of which Woodstock here complains, took from Woodstock no right previously enjoyed by it.

Woodstock applied to the Utilities Commission for the assignment to it of the exclusive right to serve every user, i.e., every prospective user, within all of the six territories here in controversy. Thus, the assignment, of which Woodstock complains, does not impose upon it the duty to serve any user Woodstock did not request permission to serve.

It does not appear upon the record before us that any user of any type within any territory here in controversy has demanded service from Woodstock. Thus, we do not have before us, and we do not determine, whether Woodstock, not having been granted its application in its entirety, may be compelled to serve any user which the order of the Commission authorizes Woodstock to serve. Woodstock has not suggested in the record, or in its brief or oral argument before us, that any service right granted it by the order is not presently desired by it, or that to serve any user which the order permits it to serve would be unprofitable or burdensome to Woodstock. Thus, Woodstock has shown no duty imposed upon it by the order amounting to an unconstitutional deprivation of its property or liberty.

The order denies to Woodstock no right to serve any user of electric power, large or small, within any territory here in controversy, which user desires service by Woodstock. Woodstock's sole complaint is that, under the terms of the order, it will not have the right to serve certain, presently hypothetical users who, if and when they come into existence, will not want its services. The right of a potential user of electric power to choose between vendors of such power seeking his patronage is not lightly to be denied. Blue Ridge Electric Membership Corp. v. Duke Power Co., supra. Prior to the assignment of which it complains, no statute of this State, no order of any administrative agency of this State and no decision of this Court, conferred upon Woodstock the right to compel such user to choose between using power sold by Woodstock and having no electric service at all. This being true, the assignment in question deprived Woodstock of no property and of no liberty. Since, by the terms of the order of which Woodstock complains, any user in any of the six territories, whose demand for electric power exceeds 400 KW, may choose Woodstock as its supplier, the order confers no monopoly upon VEPCO.

Woodstock does not challenge the constitutional validity of G.S. § 62--110.2. On the contrary, this proceeding was initiated by Woodstock's application to the Utilities Commission for an assignment to it of territorial rights pursuant to this statute. One may not, in the same proceeding, seek an advantage which is authorized by a specific statute only and, at the same time, deny the constitutionality of the statute. Ramsey v. North Carolina Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; Convent of the Sisters of St. Joseph of Chestnut Hill v. City of Winston-Salem, 243 N.C. 316, 90 S.E.2d 879. Woodstock does not here attempt to do so.

There is, therefore, no merit in the contention of the appellants that the order of the Utilities Commission violates their rights under Art. I, § 7 or § 17, of the Constitution of North Carolina, or under the Fourteenth Amendment to the Constitution of the United States.

We turn to the contention that the order of the Utilities Commission exceeds its authority under G.S. § 62--110.2. Woodstock contends that subsection (c) of this statute requires that the six territories in question be assigned to one supplier exclusively. Its contention is not that some demand level other than 400 KW should have been used as the dividing line between the exclusive right of Woodstock to serve and the right of the user to select its supplier. Woodstock contends that, under the statute, no user may be permitted to choose between two or more suppliers in the territories in question. To so construe the statute not only deprives VEPCO of a right previously enjoyed by it, but also deprives the potential user of the right he formerly had to choose between willing suppliers. The statute should not be so construed unless this is clearly its intent. Blue Ridge Electric Membership Corp. v. Duke Power Co., supra.

The statute provides:

'(c)(1) In order to avoid Unnecessary duplication of electric facilities, the Commission is authorized and directed to assign, * * * to electric suppliers all areas, by adequately defined boundaries, that are outside the corporate limits of municipalities and that are more than 300 feet from the lines of all electric suppliers as such lines exist on the dates of the assignments; provided, that the Commission may leave unassigned any area in which the Commission, in its discretion, determines that the existing lines of two or more electric suppliers are in such close proximity that no substantial avoidance of duplication of facilities would be accomplished by assignment of such area. The Commission shall make assignment of...