State ex rel. Utilities Commission v. Morgan, 16 N.C. App. 453 (1972)

Nov. 22, 1972 · North Carolina Court of Appeals · No. 7210UC620

16 N.C. App. 453

STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION; DUKE POWER COMPANY; CITY OF DURHAM; and HOUSTON V. BLAIR v. ROBERT MORGAN, Attorney General

No. 7210UC620

(Filed 22 November 1972)

Appeal by Attorney General from order of the North Carolina Utilities Commission dated 30 June 1971, affirmed in Commission order dated 31 January 1972.

On 28 April 1971, Duke Power Company (Duke) filed application with the North Carolina Utilities Commission (Commission) for authority to increase by 7.10% its electric rates. The application included a request that the rates be placed into effect immediately, without suspension, subject to Duke’s undertaking- to refund, with interest, any amounts by which such rates exceeded the amount finally determined to be just and reasonable. On 7 May 1971, the Commission issued its order finding the proposed increase to be a general rate increase, setting the matter for hearings beginning 12 October 1971, suspending the proposed rates for a period of 270 days pursuant to G.S. 62-134 “unless otherwise determined by order of the Commission,” and set for hearing on 15 June 1971 Duke’s request that the rates be made effective immediately subject to refund. After due notice, the public hearing was held on 15 June 1971 as scheduled on Duke’s petition for immediate relief. On 80 June 1971, the Commission issued its order finding that Duke had shown “good and sufficient cause in writing and through hearing and exhibits, reduced to writing, to allow the interim emergency change in rates as requested without making the usual 30 days’ notice,” and finding further that the granting of the interim emergency relief “is in the public interest.” Accordingly, the Commission withdrew and canceled its original denial of Duke’s request that the proposed rate increase become immediately effective and allowed the new rates to become effective on all sales and services made and rendered by Duke on and after 1 July 1971, conditioned on Duke’s undertaking to refund, with interest, any amount not ultimately allowed after the full evidentiary hearings.

On 30 July 1971, the Attorney General filed a petition for writ of certiorari requesting this Court to review the Commission’s order of 30 June 1971. The petition was denied by this Court on 11 August 1971.

On 11 August 1971, Duke amended its original application to increase the proposed rate increase to 11.75% in lieu of the 7.10% increase originally requested. Public hearings were held on the amended application from 12 October through 21 October 1971. On 31 January 1972, the Commission entered its final order allowing a modified increase in rates of 8.93 % which the Commission found to be just and reasonable, such increase including the 7.10% increase allowed by the order of 30 June 1971.

Following entry of the final order of the Commission on 31 January 1972, the Attorney General appealed.

Attorney General Robert Morgan by Deputy Attorney Gem eral Jean A. Benoy, for the Using and Consuming Public, appellant.

William H. Grigg, Steve C. Griffith, Jr., and Clarence W. Walker for Duke Power Company, appellee.

Commission Attorney Edward B. Hipp and Assistant Commission Attorneys Maurice W. Horne, and William E. Anderson for North Carolina Utilities Commission.

MORRIS, Judge.

By this appeal appellant does not challenge validity of the final order entered 31 January 1972 and challenges only validity of the order entered 30 June 1971 allowing the initially requested rate increase of 7.10% to go into effect pending final determination of the case, on condition that any amounts ultimately determined excessive must be refunded. This appeal thus presents the identical question as was presented in the case decided by this Court concurrently herewith entitled “State of North Carolina ex rel. Utilities Commission and Carolina Power & Light Company v. Robert Morgan, Attorney General,” with which case this case was consolidated for purposes of oral argument in the Court of Appeals.

For the reasons stated in the opinion filed in the companion case, the actions and orders of the Utilities' Commission appealed from in this case are

Affirmed.

Judges Campbell and Parker concur.