State v. Martel Mills Corp.

62 S.E.2d 80 (1950) 232 N.C. 690

STATE ex rel. UTILITIES COMMISSION
v.
MARTEL MILLS CORP.

No. 449.

Supreme Court of North Carolina.

November 22, 1950.

Oscar J. Mooneyham, Forest City, for defendant-appellant.

Charles F. Rouse and W. H. Weatherspoon, Raleigh, for Light Co., applicant-appellee.

BARNHILL, Justice.

The merit of this appeal is made to turn upon whether the Light Company is the original complainant in this proceeding. If so, the notice of appeal was ineffective for the reason it was not served. If not, then the giving of notice by mailing a copy thereof to the Light Company met the requirements of the statute.

A public utility company may make complaint to the Utilities Commission respecting its rate structure. G.S. §§ 62-24, 25. Interested parties may intervene, G.S. § 62-24, and any party aggrieved by the final order of the Commission may appeal. G.S. § 62-26.6. The party appealing must serve notice of its appeal upon the original complainant. G.S. § 62-26.6.

The requirement that notice of appeal from an order of the Commission shall be served on the original complainant connotes service by some officer authorized by law to make service of process, notices, and the like. Smith v. Smith, 119 N.C. 314, 25 S.E. 878; Lowman & Co. v. Ballard, 168 N.C. 16, 84 S.E. 21, L.R.A.1915D, 427; Hatch v. Alamance R. Co., 183 N.C. 617, 112 S.E. 529.

Where a statute provides that a notice shall be served and no particular mode of service is provided for, "service must be made by an officer, unless service is accepted," Smith v. Smith, supra, and unless so served, there is no valid service. Hatch v. Alamance R. Co., supra.

In law "complainant" means "the party who makes the complaint in an action or proceeding," Webster's New Int. Dic., 2d Ed.; "one who makes a complaint," Callaghan, Cyc.Law Dic., 2d Ed. For all practical purposes it is synonymous with "petitioner" and "plaintiff." The nature of the proceeding and the court in which it is instituted determines which term is the more appropriate under the circumstances.

The Utilities Commission is authorized to fix the rates for public utilities, G.S. § 62-122, and may, on application, permit a change in the schedule of rates then existing. G.S. § 62-125. It is the governmental agency to which a public utility must resort when it deems its rates and charges inadequate to provide a reasonable return on its investment.

The Light Company filed an application with the Commission in which it is alleged that its present rates in certain respects are inadequate and in which it seeks authority to amend its rate schedule. It thus originated this proceeding and complained that its rates are insufficient to provide reasonable and necessary revenue. The contention that it was not the original complainant cannot be sustained.

Since the Light Company is the original complainant, service of notice of appeal on it is required by the statute. G.S. § 62-26.6. In the absence of such notice, the attempted appeal was ineffectual.

It is not amiss to call attention at this time to the fact that G.S. § 62-21 (1943 ed.) is modified by Sec. 1, Ch. 989, Session Laws 1949, now G.S. § 62-26.8. Now on appeal "the complainant in the original complaint before the commission shall be a party to the record."

Since there has been no service of notice of appeal upon the Light Company, the original complainant, the judgment below must be

Affirmed.