State ex rel. Utilities Commission v. Edmisten, 291 N.C. 478 (1977)

Jan. 31, 1977 · Supreme Court of North Carolina · No. 144

291 N.C. 478

STATE OF NORTH CAROLINA ex rel. UTILITIES COMMISSION and CAROLINA POWER AND LIGHT COMPANY v. RUFUS L. EDMISTEN, Attorney General

No. 144

(Filed 31 January 1977)

Appeal by the Attorney General from the judgment of the Court of Appeals, reported in 30 N.C. App. 475, 227 S.E. 2d 602, affirming the order of the North Carolina Utilities Commission, Martin, J., dissenting. Following the enactment of G.S. 62-134 (e) terminating, as of 1 September 1975, all monthly fuel adjustment rate increases based upon the increased cost of fuel, pursuant to a fuel cost adjustment clause previously approved by the Commission, the Commission entered an order permitting Carolina Power & Light Company to impose a surcharge upon users of its service on and after September 1, 1975. The facts with reference to such surcharge, with minor variations not relevant to the determination of this appeal, are set forth in Case No. 145, State ex rel. Utilities Commission and Duke Power Co. v. Edmisten, Attorney General, decided this day.

Rufus L. Edmisten, Attorney General, by Robert P. Gruber, Special Deputy Attorney General.

Edward B. Hipp, Commission Attorney, by Wilson B. Par-tin, Jr., Assistant Commission Attorney, for North Carolina Utilities Commission.

Joyner & Howison by Robert C. Howison, Jr., and William E. Graham, Jr., for Carolina Power & Light Company.

LAKE, Justice.

For the reasons set forth in State ex rel. Utilities Commission and Duke Power Co. v. Edmisten, Attorney General, supra, the judgment of the Court of Appeals is reversed and this matter is remanded to that court with direction that it issue its judgment further remanding the matter to the North Carolina Utilities Commissions for the entry by the Commission of an order vacating its order authorizing the said surcharge, and directing Carolina Power & Light Company to refund to the users of its service the revenues collected by it from them pursuant to such surcharge.

Reversed and remanded.

Justice Copeland

dissenting.

For the reasons set forth in my dissent in State ex rel. Utilities Commission and Duke Power Co. v. Edmisten, Attorney General, I respectfully dissent.

Chief Justice Sharp and Justice Moore join in this dissent.