Carolina Power & Light Co. v. Iseley

167 S.E. 56, 203 N.C. 811, 1933 N.C. LEXIS 433

• Court: Supreme Court of North Carolina
• Decided: January 4, 1933
• Status: Published

Opinion

Connor, J.

This action was instituted in the Superior Court of Wake County under the authority and pursuant to the provisions of chapter 102, Public Laws of North Carolina, 1931, which is entitled, “An act to authorize declaratory judgments.”

In Walker v. Phelps, 202 N. C., 344, 163 S. E., 126, speaking of this act, we said: “This act is remedial; its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally'construed and administered. It is so declared in section 12 of the act.” A liberal construction of the act to the end that its purpose may be accomplished, is manifestly desirable; otherwise, the courts, in its administration, may not be able to afford the relief contemplated by its enactment. However, there are well settled and inherent limitations upon judicial power, which the courts may not transcend.

An ex parte proceeding in which the petitioner alone seeks to have his social status only determined by judicial decree is not within the scope of the act. In re Eubanks, 202 N. C., 351, 162 S. E., 159. Nor can an action instituted under the authority and pursuant to the provisions of the act be maintained, when only a theoretical problem is presented for judicial solution. Poore v. Poore, 201 N. C., 791, 161 S. E., 532. In the opinion in the last cited case it is said that “it is no part of the functions of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, or to answer moot questions, or to maintain a legal bureau for those who may ebance to be interested, for the time being, in the pursuit of an academic matter.”

Where, however, it appears from the allegations of the complaint in an action instituted under the authority and pursuant to the provisions of the act, (1) that a real controversy exists between or among the parties to the action; (2) that such controversy arises out of opposing contentions of the parties, made in good faith, as to the validity or construction of a deed, will or contract in writing, or as to the validity or construction of a statute, or municipal ordinance, contract or franchise; and (3) that the parties to the action have or may have legal rights, or are or may be under legal liabilities which are involved in the controversy, and may be determined by a judgment or decree in the action, the court has jurisdiction, and on the facts admitted in the pleadings or established at the trial, may render judgment, declaring the rights and liabilities of the respective parties, as between or among themselves, and affording the relief to which the parties are entitled under the judgment.

The distinction between the statute which authorizes the submission of a controversy without action (C. S., 626) and the statute under which this action was instituted, is obvious. It need not be alleged in the complaint or shown at the trial, in order that the court shall have jurisdiction of an action instituted under the authority and pursuant to the provisions of chapter 102, Public Laws of North Carolina, 1931, that the question in difference between the parties, is one which might be the subject of a civil action, at the time the action was instituted. It is not required for purposes of jurisdiction that the plaintiff shall allege or show that his rights have been invaded or violated by the defendants, or that the defendants have incurred liability to him, prior to the commencement of the action. It is required only that the plaintiff shall allege in his complaint and show at the trial, that a real controversy, arising out of their opposing contentions as to their respective legal rights and liabilities under a deed, will or contract in writing, or under a statute, municipal ordinance, contract or franchise, exists between or among the parties, and that the relief prayed for will make certain that which is uncertain and secure that which is insecure. See Walker v. Phelps, 202 N. C., 344, 163 S. E., 727. In that ease, a declaratory judgment rendered in the action which was instituted in the Superior Court of Washington County under the authority and pursuant to the provisions of chapter 102, Public Laws of North Carolina, 1931, was affirmed by this Court.

It appears from the allegations of the complaint in this action that the plaintiff, a public service corporation, interested not only in the preserva- lion, without impairment, of its rights under its franchise, granted by the defendant, city of Ealeigh, but also in the means and methods by which it may render transportation service to the public, as it is required to do by its franchise, is entitled to the relief provided by chapter 102, Public Laws of North Carolina, 1931. There is a real controversy between the plaintiff and the defendants as to their respective rights and liabilities, which grows out of their opposing contentions as to the validity and construction of the contract entered into by and between the plaintiff and the defendant, city of Ealeigh, and of the orders made by the Corporation Commission of North Carolina, both the said contract and the said orders providing for the substitution by the plaintiff of its street cars, operated by means of electricity over and along its tracks on Glenwood Avenue in the city of Ealeigh, and beyond the city limits, by motor buses to be operated over Glenwood Avenue, and beyond the city limits, by means of gasoline engines. It was admitted by the parties to the action, both in the pleadings filed, and at the trial, and was found by the court as a fact, that “the substituted bus service, in lieu of said street car line, as provided for in said Corporation Commission’s orders and in said contract with the city of Ealeigh, will more adequately and conveniently serve the public transportation needs in the territory affected thereby than would the continued operation of said electric railway cars.”

The plaintiff, Carolina Power and Light Company, has heretofore constructed, and now maintains, over and along certain streets of the city of Ealeigh, and beyond the corporate limits of said city to a point at or near the property of the defendant, Carolina Country Club, street car tracks, over which the said plaintiff operates cars propelled by electricity, which is transmitted to said cars by means of overhead trolley wires strung on poles erected on said streets, for the transportation, for hire, of passengers and freight. It carries on its business in that respect as a common carrier by means of its electric street railway system, under a franchise granted by the defendant, city of Ealeigh, on 24 May, 1905. It is now proposed, in the interest of better service to the public, that the plaintiff shall discontinue the operation of its electric street cars on Glenwood Avenue, one of the streets of the city of Ealeigh, and beyond the corporate limits of the said city to the Carolina Country Club, and shall abandon and/or remove its tracks, wires, and poles from Glenwood Avenue, and certain streets leading into said avenue, and that upon so doing the said plaintiff shall substitute for said electric street cars, motor buses which it shall maintain and operate within the city of Ealeigh under its franchise, and beyond the corporate limits of said city, under the orders of the Corporation Commission. To that end, a contract was entered into by and between tbe plaintiff and the defendant, city of Ealeigh, on 28 November, 1931, and an order was made in a proceeding instituted by the plaintiff by the Corporation Commission of North Carolina, on or about 7 January, 1932, which was amended by a subsequent order made on or about 4 November, 1932.

The opposing contentions of the plaintiff and the defendants, with respect to the validity and proper construction of said contract and orders, are alleged in the complaint, and admitted in the answers filed. At the trial, on the facts admitted, and in accordance with its conclusions of law, the court adjudged “that the contract entered into by and between the Carolina Power and Light Company and the city of Ealeigh, dated 28 November, 1931, is a valid, binding and subsisting obligation between the city of Ealeigh and the Carolina Power and Light Company, and as such is binding upon the contracting parties, as well, also, upon the citizens and property owners of the city of Ealeigh, subject to the conditions of performance on the part of the Carolina Power and Light Company as alleged in the complaint, and as set forth in finding of fact No. 4.”

The court further adjudged “that the orders of the Corporation Commission are in all respects lawful, and are binding upon all citizens, residents and property owners, both within and without the city of Ealeigh.”

The court further ordered and adjudged “that the Carolina Power and Light Company, be and it is permitted to comply with the terms of said contract entered into between it and the city of Ealeigh, dated 28 November, 1931, and with the order of the Corporation Commission dated 7 January, 1932, as amended by the order dated 4 November, 1932,” and that “none of the defendants has any right to, in any manner, either to interfere with the Carolina Power and Light Company in the removal and/or abandonment of its said Glenwood Avenue street car line, and the substitution of motor bus transportation therefor, in accordance with the terms of said contract and said orders of the Corporation Commission; or to procure an injunction restraining said Carolina Power and Light Company in the performance of said acts; or to obtain a mandamus or mandatory injunction to compel said Carolina Power and Light Company to reestablish and/or resume operation of said Glenwood Avenue street car line, after its abandonment and/or removal; or to recover damages of any nature, on account of a compliance with said contract and orders.”

The defendant, C. A. Gosney, who is a resident and freeholder of the city of Ealeigh, residing within said city, and as such a representative of all other residents and freeholders of said city, residing therein; the defendant, M. A. Eushton, wbo is a resident and freeholder of Wake County, residing without the city of Ealeigh, and in the vicinity of Carolina Country Club, and as such a representative of all other residents and freeholders of Wake County, residing without the city of Ealeigh, and in the vicinity of the Carolina Country Club; and the defendant, T. Lacy Williams, guardian ad litem for all citizens, residents, and freeholders of the city of Ealeigh or of Wake County, not specifically named in the complaint, for the reason that their names were unknown to the plaintiff, who are or may be under legal disability, excepted to the judgment, and on their appeal to this Court, contend that there is error therein. There was no exception to the judgment or appeal therefrom on behalf of the other defendants, either of those who are specifically named, or of those who are not so named in the complaint.

The appealing defendants contend (1) that the contract entered into by and between the Carolina Power and Light Company, and the city of Ealeigh, dated 28 November, 1931, is void, and that no rights conferred by said contract can be lawfully exercised by the plaintiff, Carolina Power and Light Company, for the reason that said contract on its face purports to be and is a franchise and has not been approved by the qualified voters of the city of Ealeigh, as required by a provision in the charter of said city; and (2) that the order of the Corporation Commission of North Carolina, dated 7 January, 1932, and amended by the order dated 4 November, 1932, is void, for the reason that said Corporation Commission had no power, by said orders, to authorize the Carolina Power and Light Company to abandon the operation, within or without the city of Ealeigh, of its electric street railway cars, and to substitute therefor the operation of motor buses.

These are the only contentions made in this Court by which the validity of the judgment of the Superior Court of Wake County in this action is brought in question. Neither of these contentions can be sustained. There is no error in the judgment adjudging in effect, (1) that the contract entered into by and between the Carolina Power and Light Company and the city of Ealeigh, and the orders of the Corporation Commission, are valid; (2) that as authorized by said contract and orders, and subject to their provisions, the plaintiff, Carolina Power and Light Company has the right to abandon, without impairment of its present franchise rights, the operation of its electric street railway on Glenwood Avenue in the city of Ealeigh, and beyond the limits of said city to a point at or near the property of the Carolina Country Club, and to substitute therefor motor buses, which the plaintiff shall maintain and operate within the city of Ealeigh, under its present franchise, and beyond the city limits under the orders of the Corporation Commission; and (3) that the defendants have no right to interfere with the lawful exercise by the plaintiff of its rights conferred by said contract and said orders.

The situation presented by this case is novel — -at least in this State. We have no decisions of this Court which may be cited in support of the judgment, but the principle on which the judgment was rendered is well stated in Russell v. Kentucky Utilities Company, 231 Ky., 820, 22 S. W. (2d) 289, 66 A. L. R., 1238. The fact situation and the questions of law involved in that case are almost identical with those x>resented and involved in the instant case. In the opinion in that case, it is said:

“The purpose and object of the franchise involved in this ease was to provide for the rapid and convenient transportation of the public. That was the basic right granted. The motive power or method of propulsion of the vehicle is subordinate or subsidiary. It is but the means of making the franchise effective. Is the substitution of cars running on rubber tires, free from limitations of steel rails and trolley wires, and propelled by internal combustion engines, in place of cars with metal wheels without tires on fixed rails, and propelled by electric motors supplied with power through overhead wires, such a radical departure from the purposes and objects and terms of the original franchise as to preclude the change? If buses be used for the transportation of passengers, there is no additional servitude on the streets or obstructions to the free and safe use of the streets by other vehicles. On the contrary, the streets are relieved of trolly poles and wires and the imbedded rails, more or less dangerous. It can hardly be said that the operation of the buses is more dangerous or obstructive than the operation of electric street cars on the thoroughfares. The problem is one of distinction between the essence in which the permanent value lies — the use of streets for transportation of - passengers for hire — and the incidents of that franehisal right which are subject to change by agreement, viz., the facilities to be used.”

Interesting questions as to the binding effect of the judgment of the Superior Court, in the event of certain contingencies which may hereafter arise, were suggested by counsel during the argument of this appeal, and are discussed in briefs filed in this Court by counsel for the appellee. We cannot now consider these questions for the purpose of undertaking to answer them, for the reason that they are not presented by exceptions to the judgment. It is sufficient to say that the assignments of error presented by the appellants on their appeal to this Court, have been considered, and that they are not sustained. The judgment is

Affirmed.