
    CAROLINA POWER & LIGHT COMPANY v. JOHNSTON COUNTY ELECTRIC MEMBERSHIP CORPORATION, and J. W. WOODARD, A. F. HOLT, SNEAD SANDERS, A. J. WHITLEY, JR., WADE H. ATKINSON, J. L. LEE, and G. T. SCOTT, Individually and as Directors and Members of JOHNSTON COUNTY ELECTRIC MEMBERSHIP CORPORATION, and THOMPSON ELECTRICAL COMPANY, a Corporation.
    (Filed 30 June, 1937.)
    1. Electricity § 3 — Corporation formed under ch. 291, Daws of 1935, need not get certificate of convenience before constructing power lines.
    Plaintiff utility company, operating in the community, instituted this action to restrain defendant corporation, which was formed under ch. 291, Public Laws of 1935 (N. C. Code, 1694, subsecs. 7 to 28), from constructing power lines in the community parallel or which would parallel lines already lawfully constructed by plaintiff company, on the ground that defendant corporation had not secured a certificate of convenience from the Utilities Commissioner, as required by ch. 455, Public Laws of 1931 (N. C. Code, 1037 [d]). Seld: By express provision of the act of 1935, corporations formed thereunder are not subject to the provisions of any other act, and the temporary restraining order was properly dissolved, the Act of 1931 not being applicable to defendant corporation.
    2. Appeal and Error § 38—
    Where the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed in accordance with the usual practice.
    
      Appeal by plaintiff from Small, J., at November Term, 1936, of Wake.
    Affirmed.
    This is an action for judgment :
    1. That the defendants be perpetually restrained and enjoined:
    “(a) From, in any manner or by any means, inducing, persuading,
    coercing, or intimidating any person or persons to fail or refuse to comply with his or their contracts or agreements with the plaintiff to wire his or their premises and to take electric service from the plaintiff.
    “(b) From, in any manner or by any means, inducing, persuading, coercing, or intimidating any person or persons to discontinue the taking of electric service from the plaintiff in violation of his or their contracts or agreements with the plaintiff to take such service.
    “(c) From, in any manner or by any means, interfering with the plaintiff in the construction and operation of its rural lines in Johnston County, where plaintiff has lawfully constructed and is now operating such lines, and from inducing, persuading, coercing, or intimidating prospective customers of the plaintiff along such lines not to take electric service from the plaintiff.
    “(d) From constructing or operating any rural electric lines paralleling any rural lines of the plaintiff, or in territory occupied by the plaintiff, or in territory contiguous to the rural lines of the plaintiff, until or unless a certificate of convenience and necessity is first obtained by the defendant Johnston County Electric Membership Corporation from the North Carolina Utilities Commissioner as provided by law.”
    2. That the defendant Johnston County Electric Membership Corporation is a public utility corporation and as such is required to obtain from the North Carolina Utilities Commissioner a certificate of convenience and necessity before it may proceed further with the construction or operation of rural lines in competition with the plaintiff.
    3. That plaintiff have such other and further relief as the court shall find it is entitled to, and recover of the defendants the costs of the action.
    From judgment dissolving a temporary restraining order and dismissing the action, the plaintiff appealed to the Supreme Court, assigning error in the judgment.
    
      W. E. Weatherspoon, A. Y. Arledge, Abell ■& Shepard, and MacLean, Pou & Emanuel for plaintiff.
    
    
      I. M. Bailey for defendants.
    
   CONNOR, J.

At the hearing of this action in the Superior Court, the court was of opinion that on all the evidence offered by both the plaintiff and the defendants, the plaintiff is not entitled to the relief prayed for in -its complaint. Accordingly, the temporary restraining order, issued in tbe action was dissolved, and tbe action was dismissed by judgment as of nonsuit. On its appeal to tbis Court, tbe plaintiff contends tbat there is error in tbe judgment:

1. For tbat tbe judgment is predicated primarily on tbe erroneous bolding of tbe court tbat tbe defendant Jobnston County Electric Membership Corporation was not required, before beginning tbe construction or operation of its facilities for serving its members by furnishing them electricity for lights and power, to obtain from tbe Utilities Commissioner of.North Carolina a certificate tbat public convenience and necessity requires or will require tbe construction and operation of said facilities by the said defendant; and,
2. For tbat there was evidence at tbe bearing of tbe action sufficient to show tbat tbe defendants, other than Thompson Electrical Company, have wrongfully and unlawfully caused and will wrongfully and unlawfully continue to cause customers of tbe plaintiff to violate their contracts or agreements with tbe plaintiff, as alleged in tbe complaint, and tbat for tbis reason tbe action should not have been dismissed, but should have been continued for a final bearing.

Tbe plaintiff is a public service corporation, organized and doing business under tbe laws of tbis State, with its principal office in tbe city of Ealeigb, "Wake County, North Carolina. It is engaged in business in tbis State and elsewhere as a public utility and as such furnishes its customers electricity for lights and power. Prior to tbe commencement of tbis action, tbe plaintiff bad lawfully entered Jobnston County, which adjoins Wake County, and bad constructed lines and other facilities for tbe purpose of furnishing to residents of rural communities of Jobnston County electric service. It bad at great expense procured from many residents of rural communities of Jobnston County contracts or agreements by which said residents bad agreed to wire their premises, and to take from tbe plaintiff, as its customers, electric service. Many of these prospective customers of tbe plaintiff, notwithstanding their contracts and agreements, have failed to wire "their premises, or to take from tbe plaintiff electric service. Such failures have resulted and will result in great loss and damage to tbe plaintiff.

Tbe defendant Jobnston County Electric Membership Corporation was organized under and pursuant to the provisions of chapter 291, Public Laws of North Carolina, 1935. N. C. Code of 1935, section 1694 (7 to 28). After its organization and prior to tbe commencement of tbis action, tbe said defendant applied to tbe Federal Eural Electrification Administration for a loan of money to enable it to construct facilities for tbe purpose of furnishing its members electric service. Tbis application was approved by tbe North Carolina Eural Electrification Authority, and tbe Federal Eural Electrification Administration bas agreed to make tbe loan in accordance witb said application. Relying upon said agreement, tbe defendant bas entered into a contract witb tbe defendant Thompson Electrical Company, of Raleigb, N. C., for tbe construction of said facilities. Pursuant to said contract, tbe defendant bas constructed and will continue to construct lines in rural communities of Johnston County, wbicb parallel or will parallel certain lines constructed by tbe plaintiff. There is now and will continue to be sharp competition between tbe plaintiff and tbe said defendant in certain rural communities in Jobnston County. Tbe defendant has not obtained or applied for a certificate of convenience and necessity, in accordance witb tbe provisions of chapter 455, Public Laws of North Carolina, 1931. N. 0. Code of 1935, section 1037 (d).

It is provided by statute in this State that “no person, or corporation, their lessees, trustees, or receivers, shall hereafter begin tbe construction or operation of any public utility plant or system, or acquire ownership or control of (such plant or system) either directly or indirectly, without first obtaining from tbe Utilities Commissioner a certificate that public convenience and necessity requires or will require such construction, acquisition, or operation: Provided, that this section shall not apply to new construction in progress at tbe time of tbe ratification of this act, nor to construction into territory contiguous to that already occupied, and not receiving similar service from another utility, nor to construction in tbe ordinary conduct of business.” Chapter 455, Public Laws of North Carolina, 1931; N. C. Code of 1935, section 1037 (d).

This statute is not applicable to tbe defendant Jobnston County Electric Membership Corporation, wbicb was organized under tbe provisions of chapter 291, Public Laws of North Carolina, 1935. Section 23 of «aid chapter is as follows :

“This act is complete in itself, and shall be controlling. Tbe provisions of any other law, general, special, or local, shall not apply to a corporation formed under this act.”

By reason of tbe provisions of this section of tbe statute under which it was organized, there was no error in tbe bolding of tbe court in tbe instant case that tbe defendant Jobnston County Electric Membership Corporation was not required, before beginning tbe construction or operation of its facilities for serving its members by furnishing them electricity for lights and power, to obtain from tbe Utilities Commissioner of North Carolina a certificate that public convenience and necessity requires or will require tbe construction and operation of said facilities by said defendant. Tbe judgment, in so far as tbe same is predicated upon this bolding, is affirmed without division of opinion by members of this Court.

Schenck, J.,

one of tbe members of this Court, not sitting at the hearing of this appeal, and the other members being evenly divided in opinion as to whether there was error in the judgment dismissing the action, on the ground that there was no evidence at the hearing tending to show that the defendants have wrongfully and unlawfully caused customers of the plaintiff to violate their contracts or agreements with the plaintiff, and will continue to wrongfully and unlawfully cause said customers to violate their contracts or agreements with the plaintiff, as alleged in the complaint, the judgment dismissing the action is affirmed in accordance with the practice of this Court in such cases. Golt v. Ins. Co., 210 N. C., 832.

In accordance with this opinion, the judgment is

Affirmed.  