*1 N.OApp.] FALL SESSION 1968 Membeeship Cobp.
Umlehes Comm. Electeic escaped. This show the lawful- exhibit was offered State alleged escape. ness of defendant’s the time of the confinement at signature This commitment an assistant clerk of contained the of Superior imprint Mecklenburg Court of and bore the County, County. Superior Mecklenburg official seal of the Clerk of Court of adversely precise question This has been decided to defendant’s position in the case of Beamon, App. 583, State v. N.C. filed 16 Upon assignments authority 1968. of Beamon defendant’s October of error are overruled. error.
No PakKEb, JJ., concur.
Beitt COMMISSION, CAROLINA, OF NORTH STATE rel UTILITIES ex DUKE POWER COMPANY COR v. UNION ELECTRIC MEMBERSHIP PORATION No. 6810UC395 (Filed 1968) 31 December Electricity 1. 2— consumer’s § Upon request consumer, supplier may provide of a an electric premises initially requiring service to such consumer on electric service municipality, after 20 1965 if such are located outside wholly supplier, are not located within 300 feet of the lines partially are not located within 300 feet of the of two lines or more electric suppliers, partially and are not located within supplier pursuant (c) to an electric subsection G.S. 62-110.2. G.S. (5). 62-110.2(b) Electricity 2; assignment 2. Utilities Commission 4— rural § § — territory authority of the Commission purposes Chapter 287, (1) The Session Laws of to vest the authority responsibility assign territory
Utilities Commission with suppliers (2) to electric in areas outside G.S. to declare certain of electric municipalities pending assignment territory. 62-110.2(b). 62-110.2(c)(1), 2; Electricity jurisdiction 3. Utilities Commission 4— § § of Com- mission where consumer has to choose 62-110.2(b) (5) applies in factual situation where consumer of elec- tricity requests premises initially requiring electric services such ser- APPEALS OF IN THE COURT Coep. v. Electkio
Utilities Comm. *2 municipality, outside are located vices 1965 and after supplier, not wholly are lines of are not within 300 feet of the suppliers, and partially more of two or of the lines located within 300 feet assigned partially to an electric within are not located or 62410.2(c) ; provisions pursuant Ch. deal supplier other G.S. to G.S. responsibilities general powers Commission of the Utilities authority, give applicable in situation factual the Commission to 62410.2(b) (5), provisions clearly a determina- to make of G.S. within the unnecessary cause an would that the choice tion electric facilities. — general pro- particular statutory construction 5— v. 4. Statutes § visions special statute, a of which is in one there are two Where standing alone, which, general, particular would conflict if other provision, special particular intended to will taken as con- with the Assembly general provision, exception is as the General to the stitute presumed a conflict. to have intended not to — particular general statutory stat- construction 5— 5. Statutes § utes subject in with reference matter detail deals with the Where one statute subject particular deals with the same and another statute a situation terms, particular comprehensive general statute will be matter clearly appears controlling particular unless it in the situation construed general controlling, Assembly intended to make the act the General particular especially statute later is enacted. when the statutory construction 5— Statutes § 6. meaning precise law are clear true evi- of the If the words enactment, room for there is no construction. of the on the face dent right deny ser- 4— of electric Commission § Utilities 7. vice consumer has the unre- Commission Conclusion 62410.2(b) held under stricted deny the chosen service re- to the quired Commission. the Utilities dissenting. Brock, J., Corporation from Utilities
Appeal by Union Electric May 1968. order of 8 appeal dispute. are not in substantial pertinent The facts (Union) duly organized, is a Membership Corporation Union Electric a wholesale corporation which is both membership nonprofit (Duke), Company Duke Power competitor retail customer and public utility. organized corporation duly defined suppliers as are electric Union and Duke Both FALL SESSION Membership Coup. Utilities Oomm. v. Electric (a) (3). No service areas County have been Union as between the pursuant two to G.S. 62-110.2.
In fronting William L. acquired Carter a tract of land the west (S. 2139) side of County Griffith Road R. about two miles south of corporate 2,000 limits of Monroe and about feet south of Richardson Creek. Since 1939 and until the construc- complained tion of, along Union’s facilities have been located on and Griffith Road south Creek, of Richardson and Duke’s facilities were along on and the same road north of Richardson Creek. At the time purchased Carter continuing present, aforesaid tract and Union’s distribution ran in along line a north-south direction edge eastern opposite of Griffith Road frontage the road *3 tract. Union also generally parallel had line to the tract’s southern boundary line for a distance of feet, averaging approxi- about 250 mately 150 feet from said boundary line. There was no service on the tract itself when purchased. At the time of purchase, Union served a property adjoining house on the the tract on the south and a house property adjoining on the the tract on the north. Duke’s nearest fa- cilities to purchase April the tract at and until 3,400 1967 were some feet north, on the west side of Griffith Road. purchased
Carter the tract for residential development purposes and, December 1966, began to clear and develop it, laying out and constructing entry road in approximate center of the tract running generally east-west off of Griffith Road. The tract was subdivided into some thirty residential building lots. response
In legitimate inducements offered Duke generally, requested Carter Duke, about the April first week of 1967, to con- struct facilities to his subdivision and to serve a house which he had begun on entry road some 600 feet west of Griffith Road and 352 parallel feet from Union’s line to the subdivision’s south property line. Pursuant request, Duke, on or about 7 1967, constructed its line from its on facilities Griffith Road north of Richard- son down and with Creek Griffith Road south about 3,000 feet to the property subdivision, south line of the thence westerly 507 along feet edge the south of the subdivision to a dead end, thence northeast 300 under feet to the aforesaid house construction. All of Duke’s con- placed Road was poles struction on Griffith on installed a tele- phone company primary pole for its use with rental to Duke. from Duke’s line Griffith Road into the subdivision was on its own poles. Duke’s new construction on Griffith Road crossed over the road twice and crossed over Union’s lines reaching twice before the sub- directly parallel division. Duke’s lines are op- Union’s lines on OF APPEALS IN THE COURT Corp. v. Electric Comm. posite approaches side Griffith Road for about as it 700 feet sub- back line in the property reaches the line of the subdivision. The at an aver- directly parallel division is for feet Union’s about 225 age construction, of approximately distance feet. Since Duke’s on Carter has started an additional house the subdivision Griffith This house is feet and about 80 feet Road. from Union’s lines power new to this provides from Duke’s line. Union construction parties’ lines this point also cross each other at house Griffith Road. asking filed complaint
Union the Utilities Commission restraining further of facilities it issue orders Duke from construction furnishing any west ser- the area of Richardson and from Creek already constructed; requiring also vice whatever from the facilities down and remove the constructed it to take facilities Duke the area. bring
The Utilities Commission ruled that the facts of (b) (5) of G.S. 62-110.2 dismissed Union’s it within appealed. complaint. Larry Hipp Edward B. Ford G. North Carolina Utilities for
Commission. Ward, Jr., George Jr., I. Ferguson, plaintiff William W. appellee, Duke Company. Power n & Twiggs Hugh Crisp, Wells T. Crisp William A. Wells *4 n & by appellant, and S. Clark Richard Clark Huffman for defendant Electric Corporation. Bkitt, J. majority adopted by
The order the Utilities Commission was based upon premise (5) ap- that the of G.S. are plicable situation covered case. factual this Said section reads as follows:
“(b) suppliers In areas outside of electric municipalities, shall as follows: have restrictions
[*] [*] Any premises initially requiring (5) electric service after wholly which are not located within 300 feet of the lines 20, partially any electric and are located within 300 of may suppliers two or more electric be served the lines of feet of such chooses, which the consumer any electric FALL SESSION 1968 Coep. Membekship Comm. Electkic assigned premises are an area wholly located or within partially any (c) to an hereof, electric pursuant to subsection thereaf- electric shall not not so chosen the consumer ter premises.” furnish service to such [1] Duke contends, and the Utilities Commission concluded, that quoted facts of this statute. The squarely case fall within the question presented sup can anMay as follows: electric be.stated upon to such plier, request of a consumer, provide service premises consumer after initially requiring electric service April 1965, municipality, if such are located outside wholly sup are not located within 300 lines of feet of the plier, partially are not located within of of two or 300 feet the lines suppliers, more electric are not within partially located (c) supplier pursuant to an of subsection question in G.S. 62-110.2? We answer the the affirmative.
Chapter [2] Determination of 1965 Session appeal Laws codified as necessitates a consideration 62-110.1, et seq. one Clearly, purposes Chapter 287 is the Utili to vest authority assign ties Commission with responsibility territory (c) suppliers; purpose (1) is set forth G.S. 62-110.2 .to as follows:
“(c) (1) In order to avoid unnecessary duplication of electric facilities, to assign, authorized directed as practicable soon January 1, sup- after 1966, to electric pliers areas, by all adequately boundaries, defined are out- corporate side of municipalities limits and that more than are 300 feet from the lines all electric suppliers as such lines exist on the dates of assignments; provided, that the Commission unassigned any may leave area in which Commission, its discretion, existing determines that the lines two or more elec- suppliers proximity tric such close that no substantial avoidance facilities would accomplished assignment of such area. The Commission assign- shall make areas in public ments of accordance with and neces- convenience considering, among other sity, things, the location lines and facilities of electric adequacy de- of the service of electric pendability suppliers, but not consider- among electric ing suppliers.” rate differentials 1965 Session [2] It is *5 equally Laws, clear that another purpose particularly the section of Chapter 287 of the codified as G.S. to declare certain of electric (b), is in 62-110.2 areas municipalities pending assignment the of territory. outside of Thus, 314 IN THE OF COURT APPEALS Membership Cokp.
Utilities Comm. v. Electric an rights given in action certain us, the before we must consider Assembly. and a consumer the General not [3] rest Appellant entirely upon contends that the consideration of a determination the provisions of this appeal G.S. does 62- Chapter of the provisions of 62 upon 110.2 but also certain other 62-31, 62-32, 62-42, 62-30, Statutes, particularly 62-2, General be Appellant must considered contends G.S. 62-110.2 62-73. Chapter 62. with other sections of pari and construed materia said interpretation of statutes. “Where there [4] Our Supreme Court has spoken many times on are two the question of in a stat general, other special particular and the ute, of which is one particular pro alone, conflict with the standing if would which, excep as intended to constitute special the will be taken vision, is Assembly the general provisions, as General tion to the Corporation, v. a conflict.” Davis Granite presumed to have intended 2d, Statutes, Index 335; Strong, 2d 7 N. C. 672, 259 131 S.E. N.C. 5, p. 73. §
statute deals [5] It is also with a rule of' subject statutory matter construction that in detail with reference to “[w]here one particular deals with the same situation another statute general comprehensive terms, particular matter in statute controlling particular will situation unless it be construed clearly Assembly gen appears that the General intended make controlling regard thereto, especially the particular eral act when Strong, Statutes, 5, p. N. 2d, statute is later enacted.” Index 73. C. § 203, [6] 69 S.E. In Watson 2d 505, Barnhill, Industries v. J. Shaw, (later Comr. C.J.), said: “If the words of Revenue, 235 N.C. precise, meaning true evident on the law are clear enactment, High no In face of the there is room construction.” way Hemphill, 535, 22, 2d our Su Commission v. N.C. S.E. “ preme through Branch, J., language declared: When the Court ambiguity, expressing a plain single, and free from defi statute is meaning, meaning conclusively presumed nite and sensible meaning Legislature intended, which and the statute must be the accordingly.’ Long v. Smitherman, 682, 251 N.C. interpreted 2d 834.” S.E.
presented [3] appeal. The other sections (5) deals with specific Chapter factual 62 referred situation general powers and responsibilities deal Utilities Commission. Corp. Light Co., 749, 255 N.C. 120 S.E. 2d In opinion J., written Court, Bobbitt, declared: Supreme
our *6 FALL 315 SESSION 1968 Membbeship Coep. Uthities Comm. v. Electric Light “In 717, N.C. Membership Corp., Co. Electric S.E. 105, in electric mem 1937, decided this held that an Court bership were to corporation public utility corporation and a free compete provisions in rural areas. restricted by Unless the January Article 8 of and de 5, 1956, plaintiff their contract of fendant may continue to do so.”
Finding order, which fact No. 16 of Utilities Commission the excepted by was not Union, to states:
“16. 12, complainant Prior to March defendant had 1965, a contract ‘nor provided, alia, between them which inter shall by either party, properly unless ordered to do so constituted authority, duplicate 12, 1965, the March other’s facilities.’ On counsel for in membership corporations all the public agreement State and all utilities entered into relationships governed by that their would be territorial G.S. by than 62-110.2 rather the contracts as herein referred to.”
Inasmuch prior as the contract between Union and Duke along 12 March they, to 1965 was terminated and with other electric membership corporations public and electric utilities North Car- olina, agreed relationships governed by that their territorial would be “freedom 62-110.2, compete to rural areas” declared in Light Co., Membership Corp. v. supra, applicable would be provision (b) (5) forbidden some G.S. 62-110.2. Subsection precise declaring 62-110.2 is clear of an presented situation appeal. the factual [3] As stated in the Commission order, accept argument Union, would, or the in effect, Commission court amend G.S. 62- (b) (5) adding providing 110.2 a clause Utilities “unless the Com mission shall find consumer’s creates unreasonable accept argument. In of facilities.” We cannot Board Lee, Architecture v. 264 N.C. S.E. 2d 643, dealing case construction, (now J. statutory Parker, C.J.), speaking for our “* * * Supreme Court, having said: The General Assembly thus formally expressed will, its clearly power Court is without interpolate superimpose or conditions limitations which the stat * * *” utory not of itself exception does contain. duty
Union insists it is the and responsibility of the itself in bar assert at and similar instances prevent unnecessary, extravagant in order to dupli- and wasteful hold cation of electric facilities. We do not that the Utilities Commis- authority, proper in a proceeding, prohibit sion lacks the con- IN THE APPEALS COURT OF Membership Coup.
Uthitegs Comm. v. Electric ex- struction power proposed extension utility pansion of its on com- facilities, if determine the Commission should *7 petent unnecessary evidence that such construction would be Corp. Light utility’s wasteful investment of funds. the Co., supra. presented We do hold that on facts in the before the us, (b) (5), and in the face of the the of G.S. Com- 62-110.2 justified taking mission was case. The Com- not such action this finding, a fact, exception mission found as and Union made to the no that the was at that $2,335.00; construction this case a cost of $1,485.00; the cost to have “it would be Union would been profitable provide for either Duke or Union to service the entire subdivision, particularly to the 29 homes which are all electric.” to be [7] The first paragraph of “Conclusions” in the Commis sion order as reads follows: present present
“The found in the facts above would seem to following case the for 'Does issue decision the Commission: residing boundary municipality consumer, outside the yet any in an not under G.S. supplier to right electricity have select and obtain from. (c), 62-110.2 the his when the to be served the electric of structure any is not within 300 feet of line ;supplier?’” assigns to, conclusion. We hold excepted error, as sup- subject right quoted conclusion is the the
that'the deny required by service unless the Utilities Com-' plier chosen to the mission. following the conclusion of the exception No. 6 relates to
Union’s Commission: is (5), it language
“We feel that under Legislature that, pending intended as- clear that the abundantly supplier, consumer signment any a rural area to one electric within 300 feet of initial service requiring has existing supplier’s lines the unrestricted choice has to serve such the unrestricted and the chosen final clause Furthermore, specifically stated in the consumer. not so the con- statute, ‘any chosen ” premises.’ furnish not thereafter service such shall sumer suppliers” part choice of the “unrestricted hold that We willingness chosen consumer the Utilities compelled by Commission. to serve . above-mentioned, we hold that modification Except FALL SESSION 1968 Membebship Cobp. Comm. v. Electric Uthities final order of the Utilities Commission was without error and the assignments brought appellant of error forward overruled.
The modify Utilities Commission will its order in with accordance opinion. Modified and affirmed.
PARKER,J., concurs.
Brock, J., dissents.
Brock, J., dissenting:
I agree opinion cannot majority the enactment 62-110.2(b) (5) legislature intended to divest the Utilities *8 power question inquire duplication Commission of into the might by facilities which caused a consumer’s an elec- choice of tric where the conditions the statute are otherwise met. majority it opinion And seems to me that the has conceded a by to the exercise of discretion under the statute the Utilities its statement as follows: hold Commission “We 'unrestricted choice of supplier’ part on the of the consumer ivillingness the chosen serve by compelled added.) Utilities (Emphasis Commission.” Never- majority opinion theless the affirms the dismissal of proceeding 62-110,2 upon grounds the Utilities Commission that G.S. (6) deprives power it make and enforce a determination whether the extension of Duke’s lines in this reasonable, case is whether it constitutes unreasonable and duplication wasteful alleged facilities as Union Electric. opinion my question In the statute in does not divest power duty to make and enforce a de- termination from the facts of the case whether the choice of qualified otherwise consumer, made to make a choice under this statute, would cause unwarranted of facilities. It may be that the extension its lines Duke is proper permitting duplication, the criteria but under the Utilities Commis- make an required appropriate sion should determination. appropriate findings vote to remand I and conclusions.