Complainant appeals from decree dissolving temporary injunction whereby respondent had been enjoined from proceeding with any construction of electric lines and facilities in the City of Samson.
Complainant is Covington Electric Cooperative, Inc., hereinafter sometimes called Covington, a corporation organized under § 31 et seq., Title 18, Code 1940. Covington is not a utility subject to regulation by the Alabama Public Service Commission.
Respondent is Alabama Power Company, a corporation, a public utility in the business of generating, transmitting, and distributing electricity. The Power Company is subject to regulation by the Alabama Public Service Commission.
The temporary injunction was granted on the ex parte application of Covington. The Power Company filed motion to dissolve.
The City of Samson and certain individual persons, who are residents of the city, were permitted to intervene.
After notice and hearing on the motion to dissolve, the court rendered decree dissolving the temporary injunction. From that decree Covington appeals and asserts that the court erred in dissolving the injunction and in permitting intervenors to intervene.
In its bill of complaint, Covington alleges that it now furnishes electricity to 760 residents of Samson under a franchise granted by the City of Samson; that the Power Company has never furnished electricity to any resident of Samson; that the Power Company has procured from the city a franchise allowing the Power Company to use the streets of the city to serve the citizens of Samson with electric energy in competition with Covington; that the Power Company is about to construct its lines
that the Power Company does not have a certificate from the commission authorizing the Power Company to construct facilities in the City of Samson and that the construction now contemplated by the Power Company is not an ordinary extension of an existing system in the usual course of business, ".... and will be an invasion of a territory now being adequately served with its electric requirements by" Covington; that the construction contemplated by the Power Company will bring about a dangerous and unsafe condition due to the close proximity of its lines and the lines of Covington; and that the duplication of Covington's facilities will cause Covington to lose "part of its income from these facilities which how amounts to over $100,000 annually."
The prayer of the bill is for temporary and permanent injunctions and for general relief.
As we understand Covington's argument, it recognizes that it has no exclusive franchise. Covington states in brief:
The Power Company says that § 332, Title 48, does not require it to obtain a certificate for construction on streets within corporate limits of municipality where Power Company has a franchise from the municipality, and that this is true because of certain constitutional and statutory provisions.
Section 22, Constitution of 1901, provides:
The argument is that the legislature is prohibited by the organic law from making an irrevocable or exclusive grant, and, therefore, such grant cannot be made by a municipality which is merely an agency of the state exercising only derivative powers. The power of the agent cannot exceed that of the principal. Birmingham & Pratt Mines St. Ry. Co. v. Birmingham St. Ry. Co., 79 Ala. 465, 473. The city, under constitutional limitations, is denied the right to grant to any person or corporation any exclusive franchise. Alabama Power Company v. City of Guntersville, 235 Ala. 136, 140, 177 So. 332, 114 A.L.R. 181. See Alabama Power Company v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374. If the Power
The issue comes thus to the single question: Does § 332, Title 48, make the construction of the Power Company's facilities on the streets of Samson unlawful when the Power Company has not obtained a certificate from the commission, but has obtained a franchise to do so from the city? We do not understand Covington to assert that the construction is unlawful for any other reason.
§ 20, Title 48, Code 1940, recites:
Section 220, Constitution of 1901, recites:
In Birmingham Electric Company v. Allen, 217 Ala. 607, 117 So. 199, this court considered a bill to enjoin a street railway company from abandoning a part of its service in the City of Birmingham. The city had authorized the proposed abandonment of service, but the railway company had not obtained from the commission a certificate allowing the abandonment. § 9798, Code 1923 (§ 35, Title 48, Code 1940), requires that no utility shall abandon any portion of its service until written application is first made to the commission for certificate that the public convenience or necessity permits such abandonment, and the issuance of such a certificate. It was argued that under § 9798, Code 1923, a certificate was a necessary condition precedent to the abandonment. This court said:
".... The subsequent section 9814 of the Code (§ 20, Title 48, Code 1940) expressly provides that nothing contained in such article of the Code shall be construed as a limitation or restriction upon the police jurisdiction or power of municipalities over their streets or highways, or the power of such municipalities `to adopt and enforce reasonable police regulations and ordinances in the interest of the public safety, morals and convenience.' Properly construed, as previously stated, the city authorities acted in the exercise of their police power in the general regulation of traffic in the city, and, an exercise of legislative discretion, over which the Public Service Commission has no control. * * *"
This court, with reference to Section 220, Constitution of 1901, said further:
"`..........'" [217 Ala. at page 610, 117 So. at page 202]
In the Allen case, the question was whether a certificate was required to authorize a utility to abandon service on city streets. This court held that a proper construction of what is now § 35, Title 48, in the light of what is now § 20, Title 48, and Section 220 of the Constitution, rendered a certificate unnecessary when the city had authorized the abandonment. The reason for the holding seems to be that Section 220 preserved the right of local authorities to control the use of the public ways and places mentioned therein.
In the instant case, the question is whether a certificate is required to authorize a utility to commence construction of electric lines and facilities on city streets. We are of opinion that the same reason which applied in Allen also applies here. If a utility, which has obtained a franchise from the city, is to be compelled to obtain also a certificate or permission from the Public Service Commission, then the city will be denied control of its ways and the places mentioned in Section 220 of the Constitution.
Accordingly, we hold that § 332, Title 48, construed in the light of § 20, Title 48, and Section 220 of the Constitution, did not make unlawful the construction by the Power Company of its facilities on the ways and places in Samson, as authorized by the governing body of that city. Since the construction was not shown to be unlawful, Covington was not entitled to enjoin it, and the court did not err in dissolving the temporary injunction.
We have considered all the authorities cited by Covington in support of the proposition that no utility, subject to the jurisdiction of the commission, is authorized to construct facilities in a municipality without
Turning now to the second error argued by Covington; that is, that the court erred in allowing intervention; we note that this appeal is from a decree granting a motion to dissolve a temporary injunction. Such a decree is interlocutory. Appeals are of statutory origin and, unless so provided for, no appeal will lie. State v. Seminole Bottling Company, 235 Ala. 217, 178 So. 237.
Appeal from interlocutory order dissolving injunction is authorized by § 757, Title 7, Code 1940.
The decree allowing intervention is also an interlocutory decree. We are not advised of any statute which authorizes appeal from a decree allowing intervention. If no provision is made by law for appeal from an interlocutory decree, such decree may not be assigned as error on appeal from another interlocutory decree. Fogleman v. National Surety Company, 222 Ala. 265, 132 So. 317; Gordon v. Central Park Little Boys League, 270 Ala. 311, 119 So.2d 23. We cannot, therefore, on this appeal, consider the assignments which assert error in allowing intervention.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.