State Ex Rel. Utilities Commission v. MacKie

338 S.E.2d 888, 79 N.C. App. 19, 1986 N.C. App. LEXIS 2022
CourtCourt of Appeals of North Carolina
DecidedFebruary 4, 1986
Docket8510UC69
StatusPublished
Cited by13 cases

This text of 338 S.E.2d 888 (State Ex Rel. Utilities Commission v. MacKie) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Utilities Commission v. MacKie, 338 S.E.2d 888, 79 N.C. App. 19, 1986 N.C. App. LEXIS 2022 (N.C. Ct. App. 1986).

Opinions

MARTIN, Judge.

I

The scope of judicial review of a decision of the Utilities Commission is delineated by G.S. 62-94. According to G.S. 62-94(b), this Court may reverse or modify a decision of the Utilities Commission only when

[T]he substantial rights of the appellants have been prejudiced because the Commission’s findings, inferences, conclusions or decisions are:
(1) In violation of constitutional provisions, or
(2) In excess of statutory authority or jurisdiction of the Commission, or
(3) Made upon unlawful proceedings, or
(4) Affected by other errors of law, or
[24]*24(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or
(6) Arbitrary or capricious.

G.S. 62-94(b); Utilities Commission v. Bird Oil Co., 302 N.C. 14, 273 S.E. 2d 232 (1981). Grounds for relief not specifically set forth in the notice of appeal may not be relied upon in the appellate courts. G.S. 62-94(c). However, even when specific grounds are set forth, the applicable scope of review may be determined only from an examination of the issues brought forward by the appealing party and the nature of the argument in support thereof. Utilities Commission v. Bird Oil Co., supra.

II

The first issue presented by appellant is whether the Commission erred in concluding and decreeing that she is operating a public utility subject to regulation by the Utilities Commission. In the notice of appeal filed with the Commission, and in the assignments of error in the record on appeal, appellant referred to five of the six statutory criteria as grounds for relief. It is apparent, however, that the basis of her argument before this Court, as to this first issue, is her contention that the Commission erred in its application of the law to the facts found by it. Thus our review of the Commission’s conclusion and decree that appellant is operating a public utility is properly conducted under G.S. 62-94(b)(4), whether the Commission’s order was affected by errors of law.

In its findings of fact, the Commission summarized the history of the water service and sewage disposal facilities from their beginning until the subject property was acquired by Mrs. Mackie. It found that appellant’s husband was aware, when he purchased the property, that the facilities were on the property and were in use. After appellant acquired the property, she continued to provide the services, maintained the equipment, employed men to operate the facilities, and charged fees to those using the services. Although it found that no new homes have been connected to the system since appellant acquired it, the Commission found that appellant had extended service to new residents of homes already connected. At the time of the hearing, appellant was selling water to eighteen customers and providing sewage disposal service to nineteen customers. Appellant has not [25]*25assigned error to the Commission’s findings of any of the foregoing facts; they are supported by competent evidence and are conclusive on appeal. Utilities Commission v. Intervenor Residents, 305 N.C. 62, 286 S.E. 2d 770 (1982).

The term “public utility” is defined by G.S. 62-3(23). With respect to water and sewer utilities, the statute provides:

G.S. 62-3(23)a. “Public utility” means a person, . . . owning or operating in this State equipment or facilities for:
2. Diverting, developing, pumping, impounding, distributing or furnishing water to or for the public for compensation, or operating a public sewerage system for compensation; provided, however, that the term “public utility” shall not include any person or company whose sole operation consists of selling water to less than 10 residential customers ....

Applying the definition to the facts found by the Commission, there is no question that appellant meets the statutory criteria of distributing water and providing sewage disposal service to more than ten residential customers for compensation. The basis of appellant’s argument, however, is that since she has not offered to extend services to any residence other than those already connected to her system when she acquired it, she is not operating a public utility because she does not provide the services “to or for the public.”

Although it excluded from the definition of “public utility” those water and sewer systems serving less than ten residential customers, the General Assembly did not attempt, in Chapter 62 of the General Statutes, to define the word “public” or establish any standardized test as to when a utility service is provided “to or for the public.” Hence, our Supreme Court has twice been required to consider this question and to attempt a definition of the word “public” as used in the utilities law. In Utilities Commission v. Carolina Telephone and Telegraph Co., 267 N.C. 257, 148 S.E. 2d 100 (1966), the Court defined “public,” as used in G.S. 62-3(23) as follows:

One offers service to the “public” within the meaning of the statute when he holds himself out as willing to serve all [26]*26who apply up to the capacity of his facilities. It is immaterial, in the connection, that his service is limited to a specified area and his facilities are limited in capacity.

Id. at 268, 148 S.E. 2d at 109. In Utilities Commission v. Simpson, 295 N.C. 519, 246 S.E. 2d 753 (1978), the Court rejected a definition of “public,” that would have required a service to be offered to an indefinite class or to the community at large. Instead, the Court approved a more flexible interpretation of the term.

[WJhether any given enterprise is a public utility within the meaning of a regulatory scheme does not depend on some abstract, formulistic definition of “public” to be thereafter universally applied. What is “public” in any given case depends rather on the regulatory circumstances of that case. Some of these circumstances are (1) nature of the industry sought to be regulated; (2) type of market served by the industry; (3) the kind of competition that naturally inheres in that market; and (4) effect of non-regulation or exemption from regulation of one or more persons engaged in the industry. The meaning of “public” must in the final analysis be such as will, in the context of the regulatory circumstances, . . . accomplish “the legislature’s purpose and comport with the public policy.” (Citation omitted.)

Id. at 524, 246 S.E. 2d at 756-57. The Court concluded that although a service may be offered only to a definable class, rather than to the public at large, it still may be considered an offering of service to the “public” within the meaning of the regulatory statutes.

We believe that appellant is providing water and sewage disposal service “to or for the public” under the holdings of both Carolina Telephone and Telegraph Co. and Simpson. Since her acquisition of the water distribution and sewage disposal facilities, appellant has provided services to any resident of a house connected thereto who desired the services.

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State Ex Rel. Utilities Commission v. MacKie
338 S.E.2d 888 (Court of Appeals of North Carolina, 1986)

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Bluebook (online)
338 S.E.2d 888, 79 N.C. App. 19, 1986 N.C. App. LEXIS 2022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-mackie-ncctapp-1986.