PITT and GREENE ELECTRIC MEMBERSHIP CORPORATION v. CAROLINA POWER & LIGHT COMPANY and RICHARD PATRICK WARREN and Wife, PARKER NORMAN WARREN, 261 N.C. 716

Rodman, J. Does a determination of the contractual rights of plaintiff and Power Company depend on the validity of the Power Company’s franchise? If the answer must be yes, the court correctly sustained the demurrer. G.S. 1-260. If, however, the question calls for a negative answer, the demurrer should not have been sustained for the reason first assigned. In answering the question, these facts are decisive: Power Company does not have an exclusive franchise to serve the inhabitants of Snow Hill. (We need not now decide whether it could grant such a right, G.S. 160-2(6); Thrift v.

Elizabeth City, 122 N.C. 31, 30 S.E. 349; 38 Am. Jur. 222-223; 64 C.J.S. 141.) Snow Hill does not contest the right of plaintiffs to sell electricity within its bounds. Plaintiff alleges, and the demurrers admit, Snow Hill is lighting its streets in the area involved in this controversy with electricity purchased from plaintiff. Plaintiff, in its brief filed here, expressly declares that it does not challenge the validity of the ordinance constituting Power Company’s franchise.

The question of whether Snow Hill is “a properly constituted authority” within the meaning of the contract between plaintiff and Power Company, so that it could issue a lawful order compelling Power Company to serve particular properties, even though its lines were more than 300 feet from such properties, is not here presented. Plaintiff concedes that the limitation on the right to serve contained in the contract has no force, when an order requiring service has been issued by a properly constituted authority.

We are of the opinion, and hold, that the action as presently constituted is not a challenge to the validity of the ordinances of Snow Hill. Its rights will not be prejudiced by a judgment determining the rights of the parties to this action. The second ground for demurrer is equally untenable. Snow Hill is a municipality with a population of less than 1,500. When plaintiff’s lines were constructed, the area served was outside of the corporate limits of Snow Hill. Snow Hill is purchasing current from plaintiff. It is not seeking to withhold from plaintiff the right to serve its inhabitants.

Unless we overrule Power Company v. Membership Corporation, 258 N.C. 596, 117 S.E. 2d 812, and Membership Corporation v. Light Company, 253 N.C. 610, 117 S.E. 2d 764, we think it necessarily follows that plaintiff, under the facts here presented, had the right to offer its services to the inhabitants of Snow Hill. Defendants do not suggest the contract between plaintiff and Power Company is contrary to public policy or that it impairs the rights of any citizen of the state.

If a citizen desires service from one of the contracting parties, even though its lines may be more than 300 feet distant, he may apply to the properly constituted authority for such order as may be proper. He is entitled to a hearing and an appropriate order. The judgment sustaining the demurrer is Reversed.