State ex rel. Utilities Commission v. Lumbee River Electric Membership Corp., 3 N.C. App. 318

State ex rel. Utilities Commission v. Lumbee River Electric Membership Corp.

3 N.C. App. 318 | N.C. Ct. App. | 1968

Lead Opinion

Parker, J.

The complainant in this proceeding, Lumbee River Electric Membership Corporation, contends that it is entitled to have the Carolina Power & Light Company electric service to the Acme premises discontinued and the newly constructed CP&L line removed because such facility is duplicative of Lumbee’s electric line facilities which were already in the area. While granting that CP&L may realize a profit in relation to the incremental costs of extending and operating its new three-phase line facilities herein complained of, Lumbee contends that such an extension of CP&L’s facilities nevertheless constitute an unnecessary, extravagant and wasteful duplication of facilities, the effect of which is to impose on the general public an aggregate cost that is unnecessary and undesirable. Lumbee contends that the North Carolina Utilities Commission has the legal power to prevent such duplication of electric line facilities on the part of utilities subject to its regulatory jurisdiction and that under the circumstances here presented the Utilities Commission has the legal duty to exercise *321that power. A majority of the Utilities Commission concluded, however, that the facts of this case bring it squarely within the provisions of G.S. 62-110.2 (b) (5), and that the provisions of that statute require the dismissal of Lumbee’s complaint. We agree with that conclusion.

G.S. 62-110.2 was enacted as part of Chap. 287 of the 1965 Session Laws. A principal purpose of that statute was to provide an orderly method for allocation of service areas as among competing suppliers of electricity and thereby to eliminate unnecessary duplication of electric line facilities. For that purpose, G.S. 62-110.2 (c) (1) provides that the Utilities Commission “is authorized and directed to assign, as soon as practicable after January 1, 1966, 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 date of the assignments. . . . The Commission shall make assignments of areas in accordance with public convenience and necessity, considering among other things, the location of existing lines and facilities of electric suppliers and the adequacy and dependability of the service of electric suppliers, but not considering rate differentials among electric suppliers.”

When the present proceeding was commenced no electric service area had been assigned in Robeson County by the Utilities Commission as between Lumbee and CP&L. This proceeding, therefore, presents the question of the respective rights of the parties and the powers of the Utilities Commission during the interim period pending assignment of service areas.

G.S. 62-110.2(b) (5) provides as follows:

“(b) In areas outside of municipalities, electric suppliers shall have the rights and be subject to restrictions as follows:

* -X- * * *

“(5) Any premises initially requiring electric service after April 20, 1965 which are not located wholly within 300 feet of the lines of any electric supplier and are not located partially within 300 feet of the lines of two or more electric suppliers may be served by any electric supplier which the consumer chooses, unless such premises are located wholly or partially within an area assigned to an electric supplier pursuant to subsection (c) hereof, and any electric supplier not so chosen by the consumer shall not thereafter furnish service to such premises.”

Acme’s new plant building is a “premises” within the definition *322of the statute. G.S. 62-110.2 (a) (1). It is located outside of a municipality. It initially required electric service after April 20, 1965. It was not located wholly within 300 feet of the lines of any electric supplier and not located partially within 300 feet of the lines of two or more electric suppliers. It was not located wholly or partially within an area assigned to any electric supplier pursuant to G.S. 62-110.2 (c). And finally, Acme chose CP&L to be its electric supplier. Thus, the facts of this case bring it squarely within the express and clear provisions of G.S. 62-110.2 (b) (5), and under that section Acme had the right to choose CP&L, and CP&L had the right to serve as Acme’s supplier of electricity.

This appeal presents essentially the same question as was presented by the appeal in State of North Carolina, ex rel. Utilities Commission and Duke Power Company v. Union Electric Membership Corporation, and our decision in that case, handed down this date, is determinative of this case. Since G.S. 62-110.2 (b) (5) deals expressly and explicitly with the factual situation here presented, since its language is clear and unambiguous and presents no problem of construction, we must presume that the Legislature intended exactly what the statute says.

The order of the Utilities Commission dismissing the complaint is

Affirmed.

BRItt, J., concurs. Broce, J., dissents.

Dissenting Opinion

BroCK, J.,

dissenting:

For the reasons stated in my'dissent from the majority opinion in State of North Carolina, ex rel. Utilities Commission, and Duke Power Company v. Union Electric Membership Corporation, which is filed this same date, I dissent from the majority opinion in this case.