STATE EX REL. UTILITIES COM'N v. Kenan Transport Co.

179 S.E.2d 799 (1971)

10 N.C. App. 626

STATE of North Carolina, ex rel. UTILITIES COMMISSION and United Limestone Products, Incorporated, Applicant, v. KENAN TRANSPORT COMPANY, East Coast Transport Company, Inc., Petroleum Transportation, Inc., O'Boyle Tank Lines, Inc., Eagle Transport Corporation, Protestants.

No. 7110UC30.

Court of Appeals of North Carolina.

March 31, 1971.

*801 Everette L. Wooten, Jr., Kinston, for United Limestone Products, Inc., plaintiff appellee.

Edward B. Hipp and William E. Anderson, Raleigh, for North Carolina Utilities Commission, plaintiff appellee.

Allen, Steed & Pullen by Thomas W. Steed, Jr., Raleigh, for defendant appellants.

*802 BRITT, Judge.

Protestants contend that Limestone failed to meet the statutory criteria and the rules and regulations of the Utilities Commission in its application for a contract carrier permit. We disagree with the contention.

G.S. § 62-262(i) sets forth the criteria to be used by the Utilities Commission in determining whether a permit is to be granted authorizing an applicant to operate as a contract carrier. This section states that the Commission shall give due consideration to:

"(1) Whether the proposed operations conform with the definition in this chapter of a contract carrier, "(2) Whether the proposed operations will unreasonably impair the efficient public service of carriers operating under certificates, or rail carriers, "(3) Whether the proposed service will unreasonably impair the use of the highways by the general public, "(4) Whether the applicant is fit, willing and able to properly perform the service proposed as a contract carrier, "(5) Whether the proposed operations will be consistent with the public interest and the policy declared in this chapter; and "(6) Other matters tending to qualify or disqualify the applicant for a permit."

Rule R2-10 of the North Carolina Utilities Commission, adopted pursuant to G.S. § 62-31, requires that the proposed service conform to the definition of a contract carrier as defined in G.S. § 62-3(8) which states that a "`contract carrier by motor vehicle' means any person which, under individual contracts or agreements, engages in the transportation * * * by motor vehicle of persons or property in intrastate commerce for compensation * * *." Rule R2-15(b) of the Commission provides as follows:

"(b) If the application is for a permit to operate as a contract carrier, proof of a public demand and need for the service is not required; however, proof is required that one or more shippers or passengers have a need for a specific type of service not otherwise available by existing means of transportation, and have entered into and filed with the Commission, prior to the hearing or at the time of the hearing, a written contract with the applicant for said service, which contract shall provide for rates not less than those charged by common carriers for similar services." (Emphasis added.)

Under the quoted rule it appears that an applicant for a permit as a contract carrier must show that one or more shippers or passengers have (1) a need for (2) a specific type of service and (3) that it is not otherwise available by existing means of transportation.

There is sufficient evidence in the record to indicate that due to Jenkins Gas' shortage of storage space it needed a hauling service that could deliver LPG in less than 12 hours; that the equipment that Limestone contemplated buying from Martin was to be used solely for the benefit of Jenkins Gas thereby meeting the test for a specific type of service; and that from the testimony of a representative of protestants it was evident that protestants would be unable to make delivery to Jenkins Gas within the time period needed. It is apparent from the evidence which indicates the cyclical nature of the gas business that a "dedication" of certain equipment to Jenkins Gas' use by a common carrier is not the answer to its needs; under that arrangement Jenkins Gas would have to pay $575 a week for a service that it would be unable to use for a large part of the year. The use of "dedicated" equipment is not mandatory and does not preclude Limestone *803 from complying with other provisions of the act and receiving a permit as a contract carrier. There was sufficient proof that "one or more shippers or passengers have a need for a specific type of service not otherwise available by existing means of transportation." The Commission made the other statutory findings of fact necessary for the granting of the permit and the findings are supported by competent evidence.

Protestants strongly rely on the case of State ex rel. Utilities Commission v. Petroleum Transportation, Inc., 2 N.C.App. 566, 163 S.E.2d 526 (1968). The case at hand is clearly distinguishable. In the cited case the applicant for a permit to operate as a contract carrier for a specified shipper offered no proof that the shipper had a need for a specific type of service not otherwise available by existing means of transportation; applicant's evidence showed that the only purpose in obtaining the permit was to increase the profits of the applicant; this court held that a finding by the Utilities Commission that the applicant met the test of a contract carrier was not supported by the evidence and the permit was improperly granted. In the case at hand the need for the specialized services by Limestone was shown.

It is well established that the Commission's findings of fact are conclusive and binding when supported by competent, material, and substantial evidence in view of the entire record as submitted. State ex rel. Utilities Commission v. Carolina Coach Company, 269 N.C. 717, 153 S.E.2d 461 (1967). We hold that there was sufficient evidence to support the findings of the Utilities Commission in this case and the order appealed from is

Affirmed.

CAMPBELL and HEDRICK, JJ., concur.