State v. Ray

73 S.E.2d 870 (1953)

236 N.C. 692

STATE ex rel. UTILITIES COMMISSION et al. v. RAY.

No. 90.

Supreme Court of North Carolina.

January 6, 1953.

*873 Atty. Gen. Harry McMullan and Asst. Atty. Gen. John Hill Paylor, for the Utilities Commission, appellant.

Williams & Williams, Asheville, for Smoky Mountain Stages, Inc., protestant.

James S. Howell and E. L. Loftin, Asheville, for appellee.

DENNY, Justice.

When an appeal to the Superior Court is taken from an order entered by the North Carolina Utilities Commission, the review is limited to the record as certified and to the questions of law presented therein. G.S. § 62-26.10. There is no provision for additional findings of fact by the judge for the purpose of determining the validity of the order entered by the Commission. State ex rel. Utilities Comm. v. Fox, 236 N.C. 553, 73 S.E.2d 464.

In the case of State ex rel. Utilities Comm. v. Queen City Coach Co., 233 N.C. 119, 63 S.E.2d 113, 117, Barnhill, J., clearly pointed out that where a franchise carrier of passengers serves communities over a route other than the one proposed by the applicant, the Commission is not required upon the finding of public convenience and necessity, to afford the protestant, the authorized carrier, the opportunity to remedy the inadequacy. Service between the same points but over different routes does not constitute service over a route already served, within the meaning of our Bus Act. A franchise is not granted to a carrier "to operate in a certain `territory' but over a designated `route.' The route or road to be traveled serves the communities, districts, or territories adjacent to it. It follows that `route' and `territory' are not synonymous. * * * There is nothing in the statute to prohibit the service of the same points by different carriers over separate routes when it is found by the Commission that such duplicate service is in the public interest." North Carolina Utilities Comm. v. Carolina Coach Co., 224 N.C. 390, 30 S.E.2d 328.

In the hearing before the Utilities Commission, the burden was on the applicant to offer competent, material and *874 substantial evidence in support of his application for a modification of his existing franchise. G.S. § 62-18; Utilities Comm. of North Carolina v. Great Southern Trucking Co., 223 N.C. 687, 28 S.E.2d 201. And the finding of the Commission that public convenience and necessity did not require the removal of the restrictions theretofore placed on the applicant's operating rights, was, in effect, a finding that the applicant had failed to carry the required burden of proof. In such cases, the courts will not review or reverse the exercise of discretionary power by an administrative agency except upon a showing of capricious, unreasonable or arbitrary action, or disregard of law. Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896.

The court below was in error in its finding that the failure to grant the extension of the applicant's franchise, as requested, was in effect a confiscation of his property. An applicant has no property rights in an ungranted franchise. Pue v. Hood, supra. A franchise is a privilege that may be granted or withheld by the State depending on the facts and circumstances involved. Therefore, the applicant herein is not entitled to operate with open doors in Canton and Asheville, or on that portion of U. S. Highway 19 and 23, over which the protestant herein has a franchise, until he obtains a finding by the Utilities Commission that public convenience and necessity requires the removal of such restrictions which are now included in his present franchise. And whether the evidence offered by the applicant before the Commission in support of his application, met the requirements of the statute was for the determination of the Commission in its legal discretion. Moreover, a determination by the Commission is made by statute, not simply prima facie evidence of its validity, but prima facie just and reasonable. G.S. § 62-26.10; Utilities Comm. of North Carolina v. Great Southern Trucking Co., supra [223 N.C. 687, 28 S.E.2d 203].

In the last cited case, Stacy, Chief Justice, in speaking for the Court, said: "It is to be remembered that what constitutes `public convenience and necessity' is primarily an administrative question with a number of imponderables to be taken into consideration, e. g., whether there is a substantial public need for the service; whether the existing carriers can reasonably meet this need; and whether it would endanger or impair the operations of existing carriers contrary to the public interest. Precisely for this reason its determination by the Utilities Commission is made not simply prima facie evidence of its validity, but `prima facie just and reasonable'. It is not the intent of the statute that the public policy of the State should be fixed by a jury. The court's jurisdiction in the premises is neither original nor wholly judicial in character, and so the weight to be given the decision or determination of the Utilities Commission in any given case is made an exception to its usual procedure." North Carolina Utilities Comm. v. Carolina Coach Co., supra.

In reviewing the record before us, two things must be conceded. First, to grant the applicant's request would serve the convenience of at least six citizens of the North Main Street area of Canton who make frequent trips to Asheville. Second, the applicant, in view of the general decline in the bus business, is anxious to obtain the right to pick up passengers in the North Main Street section of Canton and to transport them to Asheville, and to pick up passengers in Asheville and to transport them to Canton. Even so, the Commission in determining what constitutes sufficient proof of "public convenience and necessity" must keep in mind the imponderables to be taken into consideration as pointed out in Utilities Comm. of North Carolina v. Great Southern Trucking Co., supra. The function of the Commission is not to act merely for the convenience of a few individuals, or for the pecuniary benefit of the carriers involved, but primarily for the benefit of the public at large. Pue v. Hood, supra.

We find nothing in the record to warrant the conclusion that the Commission in denying the applicant the relief sought, acted arbitrarily or capriciously. In our opinion, the appealing protestant was entitled to an affirmance of the order of the Commission. There is no sufficient evidence *875 on the record to overturn the determination by the Commission or to rebut the presumption that it was just and reasonable. Utilities Comm. of North Carolina v. Great Southern Trucking Co., supra; North Carolina Utilities Comm. v. McLean, 227 N.C. 679, 44 S.E.2d 210. Therefore, so much of the judgment entered below as is in conflict with the order of the Commission is set aside and the cause remanded for judgment in accord with this opinion.

Remanded.

PARKER, J., took no part in the consideration or decision of this case.