City of Concord v. Duke Power Co.

Justice Whichard

dissenting.

The sole issue is whether the Court of Appeals erred in concluding that the determination date, as defined by the statute, was 30 June 1986. The majority holds that this was error and that the correct determination date was 30 June 1992. I believe the plain language of the statute establishes that the correct determination date was 30 June 1986, and I therefore dissent.

The statute defines “determination date” as “[t]he effective date of annexation with respect to areas annexed to any city after April 20, 1965.” N.C.G.S. § 160A-331(l)(b) (1994). A statute must be applied as written. In re Claim of Duckett, 271 N.C. 430, 436, 156 S.E.2d 838, 844 (1967). When the language of a statute is clear and understandable on its face, we must not engage in judicial construction; rather, our task is to give the statute its plain meaning. State ex rel. Util. Comm’n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977); State ex rel. Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969). The statutory language here is clear. The determination date is the effective date of the annexation of the area containing the Catchpole lot. That date was 30 June 1986.

The majority recognizes that the statute sets the determination date as the effective date of annexation for areas annexed to the city after 20 April 1965 and that the area containing the Catchpole lot was annexed on 30 June 1986. The majority nevertheless concludes that the determination date was not reached until the Duke Power conductor was annexed six years later.

The majority reasons, first, that the Court of Appeals improperly substituted the statutorily defined term “premises” for “area” and concluded that the determination date was therefore the date that the Catchpole premises were annexed. Because the Catchpole property was a vacant lot at the time of annexation, and thus not “premises” within the meaning of the statute, the majority concludes that there were no “premises” annexed on 30 June 1986.

The absence of premises on 30 June 1986 is irrelevant. As the majority emphasizes, the statute speaks to the area annexed, not the *219premises. The statute does not define “area.” Words not defined by the statute are to be given their ordinary meaning. See Lafayette Transp. Serv., Inc. v. County of Robeson, 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973). In this context, “area,” given its ordinary meaning, would encompass the entire geographic region annexed on 30 June 1986, including all the premises and vacant lots contained therein. It is undisputed that the Catchpole lot was annexed on that date; therefore, 30 June 1986 is the relevant determination date.

The majority then criticizes the Court of Appeals’ reliance on Duke Power Co. v. City of Morganton, 90 N.C. App. 755, 370 S.E.2d 54, disc. rev. denied, 323 N.C. 364, 373 S.E.2d 544 (1988), because that case did not expressly address the meaning of “determination date.” Morganton’s silence on the subject is irrelevant here, however, because the statute itself plainly establishes that the determination date is the date upon which a particular area is annexed.

Finally, the majority reasons that the Court of Appeals failed to consider the overall structure of the Electric Act of 1965. According to the majority, the Act focuses on competing electric lines and the facilities of two or more suppliers. The determination date thus becomes relevant only when there are at least two suppliers competing to serve a particular area. With this I agree. The majority then concludes, however, that the determination date should be defined as the annexation date on which a primary and secondary supplier competing to serve particular premises first existed. This is contrary to the plain language of the statute, which defines the determination date as the date the area was annexed, without regard to whether competing suppliers were available on that date. Obviously, such a determination would not need to be made if the owner of an annexed property sought service before a secondary supplier became available. When, as here, a lot does not require service until after a secondary supplier has become available, the determination then needs to be made as to which supplier has the right to serve the property. The statute directs us to resolve this question by reference to a statutorily defined determination date, which it makes clear.

The majority remands the case for reinstatement of the trial court’s judgment. The trial court concluded that N.C.G.S. § 160A-332(a)(5) gave Catchpole the right to choose Duke Power as his supplier. Section 160A-332(a)(5) provides:

(5) Any premises initially requiring electric service after the determination date which are located wholly or partially *220within 300 feet of the primary supplier’s lines and are located wholly or partially within 300 feet of the secondary supplier’s lines, as such supplier’s lines existed on the determination date, may be served by either the secondary supplier or the primary supplier, whichever the consumer chooses ....

(Emphasis added.) The Act defines a supplier’s “line” as “any conductor located inside the city for distributing or transmitting electricity.” N.C.G.S. § 160A-331(2) (emphasis added). At the time the Catchpole lot was annexed in 1986, Duke Power had a conductor located within 300 feet of the lot. That conductor was not inside the city, however; it therefore was not a “line” within the meaning of the statute. When the legislature defines a word in a statute, that definition is controlling, even if it is contrary to the ordinary and accepted meaning of the word. Vogel v. Reed Supply Co., 277 N.C. 119, 130-31, 177 S.E.2d 273, 280 (1970). Thus, N.C.G.S. § 160A-332(a)(5) is not applicable here because Duke Power did not have a “line” within 300 feet of the Catchpole lot on the determination date.

Duke Power and amici urge this Court to consider and act upon the policy implications of the statute as written. Specifically, they argue that the statute fails to provide adequate protection for consumer choice and fails to prevent the risk of anticompetitive annexation decisions by municipalities. Assuming arguendo that there is merit to these concerns, they are matters for the legislature, not for this Court. As we stated in State ex rel. Utilities Comm. v. Electric Membership Corp.:

It is for the Legislature, not for this Court or the Utilities Commission, to determine whether the policy of free competition between suppliers of electric power or the policy of territorial monopoly or an intermediate policy is in the public interest.

275 N.C. at 257, 166 S.E.2d at 668. Likewise, it is for the legislature, not for this Court, to determine whether a statute setting bright-line rules establishing suppliers’ rights is preferable to a statute that preserves consumer choice in fact situations such as the one presented here.

As the majority recognizes, the purpose of the Act was to prevent or reduce litigation between competing suppliers. Domestic Elec. Serv. Inc. v. City of Rocky Mount, 285 N.C. 135, 141, 203 S.E.2d 838, 842 (1974). The General Assembly chose to accomplish this purpose by creating the concept of “determination date” and by clearly defining determination date as the date the area was annexed. It is not for *221this Court to redefine this statutory term. When the terms of a statute are clear, it is this Court’s duty to apply the statute, “irrespective of any opinion we may have as to its wisdom.” Peele v. Finch, 284 N.C. 375, 382, 200 S.E.2d 635, 640 (1973).

For these reasons, I respectfully dissent. I would affirm the decision of the Court of Appeals.

Justice Webb joins in this dissenting opinion.