#### NORTH CAROLINA PUBLIC SERVICE COMPANY v. YADKIN FINISHING COMPANY.

(Filed 26 November, 1919.)

Contracts — Corporation Commission — Orders—Increase of Price — Municipal Corporations — Cities and Towns — Corporations.

Tlie plaintiff gas company entered into a contract with, defendant, a corporation engaged in finishing cotton fabrics, for the supply of gas at a certain schedule of rates, based upon actual consumption, which was approved by the State Corporation Commission, and, later, the Corporation Commission, upon the petition of the plaintiff, raised the rates relative to a certain town beyond the limits of which the defendant carried on its business, which were not subject to the ordinance or the governmental control of the town in any respect. Held, reading the order of the commission in connection with the petition, the order did not authorize the plaintiff to increase its rates of charges to the defendant, and the right of the commission to make a valid order increasing the rates above those specified in defendant’s contract is not involved in the adjudication of the case.

Hoke, J., concurs in the result.

CONTROVERSY without action, submitted before Harding, Jat March Term, 1919, of RowaN.

1. That the North Carolina Public Service Company is a corporation duly created, organized, and existing under and by virtue of the laws of the State of North Carolina, and as lessee of the Salisbury & Spencer Railway Company, is engaged as a public-service corporation in furnishing gas for fuel and lighting in the city of Salisbury, N. C., maintaining its only plant, office, and place of business in said city.

2. That the Yadkin Finishing Company is a corporation created, organized, and existing under the laws of the State of North Carolina, and is engaged in the business of finishing cotton fabrics at its plant about 6 miles north of Salisbury, N. C., and outside of any incorporated town.

3. That on or about 20 September, 1916, the plaintiff and defendant entered into a written contract, a copy of which is hereto attached, and made a part hereof, by the terms of which the plaintiff, for a period of five years thereafter, contracted and agreed to furnish the defendant gas for fuel and lighting at the following rates, subject to a minimum monthly charge of $100, to wit: $1.35 net, or $1.45 gross, per 1,000 cubic feet for the first 10,000 cubic feet per month; $1 net, or $1.10 gross, per 1,000 •cubic feet for the next 15,000 cubic feet per month; 75 cents net, or 85 •cents gross, per 1,000 cubic feet for the next 25,000 cubic feet per month; •60 cents net, or 70 cents gross, per 1,000 cubic feet for all over 50,000 •cubic feet per month.

*547Which said schedule of rates were in effect and existence in the city of Salisbury at the time, by and with the approval and by the authority of the Corporation Commission of North Carolina.

4. That thereafter the plaintiff filed its petition for authority to increase gas rates in the city of Salisbury with Corporation Commission of the State of North Carolina, and on or about 8 November, 1918, said Corporation Commission granted the petition of the said North Carolina Public Service Company.

5. That during the month of January, 1919, the defendant consumed 141,000 cubic feet of gas, and during the month of February, 1919, consumed 95,400 cubic feet of gas.

6. That under the schedule of rates authorized and permitted by the Corporation Commission of the State of North Carolina, the defendant is indebted to the plaintiff for gas consumed during the month of January, 1919, in the sum of $141.02, and for gas consumed during the month of February, 1919, in the sum of $107.88, or a total of $248.90.

7. That under the schedule of rates set out in the written contract entered into between the plaintiff and defendant on or about 20 September, 1916, the defendant is indebted to the plaintiff for gas consumed during the month of January, 1919, in the sum of $116.02, and for gas consumed during the month of February, 1919, in the sum of $100, or a total of $216.02.

8. The plaintiff contends that the order of the Corporation Commission of the State of North Carolina, in effect, abrogates in the matter of rates charged, the written contract entered into by and between the plaintiff and defendant, and that it is authorized and permitted as a matter of law to adopt the schedule of rates established by order of said Corporation Commission. The defendant contends the written contract is binding upon both plaintiff and defendant, and that the said Corporation Commission has not lawful authority by its order, or otherwise, to alter, amend or revise the schedule of rates set out in said contract, or by its order to alter or vary said contract in any particular.

The judge held that the plaintiff could only recover the contract rates for. gas furnished, and that order of the Corporation Commission did not authorize them to abrogate the said contract, and gave judgment in favor of the plaintiff against the defendant for the sum due under the contract. Plaintiff excepted, and appealed.

Linn & Linn for plaintiff.

W. LI. Woodson for defendant.

BbowN, J.

The question as to whether or not the Corporation Commission had power to authorize the plaintiff to charge a higher rate to *548tbe plaintiff than tbe contract price, and that tbe rates allowed by tbe commission supersedes tbe rates fixed in tbe contract, was very.ably argued before us by the counsel on both sides. But we are of opinion that tbe question is not presented upon this record, for we agree with tbe counsel for tbe defendant that there is nothing in the order of the commission which gives authority to tbe plaintiff to increase its rates outside of tbe city of Salisbury. Tbe defendant is located six miles north of tbe city of Salisbury, and has no connection with that city, and is not controlled by any of its ordinances or regulations. Tbe application to increase gas rates by tbe fourth section of tbe petition is specifically confined to tbe city of Salisbury. The order granted in pursuance of said petition, read in connection with it, fixes tbe rates which tbe plaintiff is allowed to charge in tbe corporate limits of tbe city of Salisbury, and nowhere else.

For this reason we are precluded from passing upon tbe interesting question sq ably presented.

Affirmed.

Hoke, J"., concurs in result.