State ex rel. North Carolina Utilities Commission v. Carolina Coach Co. , 224 N.C. 390 ( 1944 )

DeNNy, J.

Tbe appellant presents for our determination only two questions. 1. Under wbat circumstances should tbe Utilities Commission permit tbe establishment of a passenger bus line in North Carolina? 2. Did tbe court below err in granting tbe appellee’s motion for judgment as of nonsuit?

Tbe answer to tbe first question is contained in tbe statute, G. S., 62-105; C. S., 2613 (1). Tbe application for a franchise to operate any motor vehicle upon tbe public highways of North Carolina for tbe transportation-of persons and property for compensation, must be made to tbe North Carolina Utilities Commission. Tbe Commission may, in its discretion, fix a time and place for bearing of said application. Subsection (c) of G. S., 62-105, in part, is as follows: “After such bearing, tbe Commission may issue tbe license certificate, or refuse to issue it, or may issue it with modifications and upon such terms and conditions as in its judgment tbe public convenience and necessity may require”; and subsection (f) of G. S., 62-105, contains tbe following: “Tbe commission may refuse to grant any application for a franchise certificate where tbe granting of such application would duplicate, in whole or in part, a previously authorized similar class of service, unless it is shown to tbe satisfaction of tbe Commission that tbe existing operations are not providing sufficient service to reasonably meet tbe public convenience and necessity and tbe existing operators, after thirty days’ notice, fail to provide tbe service required by tbe Commission,” etc. ,

Under tbe provisions of tbe foregoing statute, tbe Commission may in its discretion grant a franchise which would duplicate in whole or in part a previously authorized similar class of service, and when it is shown to tbe satisfaction of tbe Commission that tbe existing operations are not providing sufficient service to reasonably meet tbe public convenience and necessity, and tbe existing operators, after thirty days’ notice, fail to provide tbe service required by tbe Commission, it would be its duty to do so. Tbe language is that tbe Commission may refuse 'to grant tbe additional franchises unless it is shown to tbe satisfaction of tbe Commission that certain facts exist as set forth in tbe statute. However, tbe granting of a franchise for tbe operation of any motor vehicle upon tbe public highways of North Carolina, for tbe transportation of persons and property for compensation, must be predicated upon public convenience and necessity. Tbe Commission has held that tbe testimony offered herein supports tbe finding of public convenience and necessity for tbe proposed service to be rendered by tbe respective applicants, and has issued its Order accordingly.

Tbe determination made by tbe Commission is prima facie just and reasonable. G. S., 62-21; C. S., 1098; Utilities Com. v. Trucking Co., 223 N. C., 687, 28 S. E. (2d), 201. While tbe appellant denies tbe existence of public convenience and necessity for tbe proposed services, it seriously contends that if tbe services are to be established tbe Commission must give it tbe opportunity to establish them, and only upon its failure to do so does tbe Commission have tbe right under tbe statute to grant tbe franchises sought in this proceeding. This position is based upon tbe contention that tbe services now furnished by tbe appellant are reasonably adequate to meet tbe public convenience and necessity and that it stands ready, able and willing to provide additional services, and further that tbe granting of tbe proposed franchises will result in a duplication in whole or in part of existing services. We think tbe contention is untenable. Tbe facts do not warrant tbe conclusion that tbe services of tbe appellant are being duplicated within tbe meaning of this statute. Tbe City Transit Company now operates tbe bus service authorized by tbe North Carolina Utilities Commission in tbe city of High Point and suburban areas. Tbe additional franchise sought by this company would enable it to operate local buses from High Point to Jamestown over U. S. Highway No. 70, thence to Oakdale Cotton Mills, a village one mile southeast of Jamestown, and to return to High Point over tbe same route, a service purely local in character. Tbe Community Transit Lines seek an additional franchise to permit it to connect its present line on Kivett Drive, east of High Point, with its Greensboro-Kernersville line, to Jamestown, crossing U. S. Highway No. 70 to Guilford College, a distance of 9.1 miles. Tbe appellant operatés a passenger service over U. S. Highway No. 70 between High Point and Greensboro, but does not render any service to tbe local communities to be served under tbe franchise sought, except by its through bus service from High Point to Greensboro over U. S. Highway No. 70, which highway passes through Jamestown. The contention that the operation of a circuitous bus line from High Point over Kivett Drive, thence to Oakdale Cotton Mills, thence to Guilford College, thence to Greensboro, over the Greensboro-Kernersville line, of the Community Transit Lines, is a duplication of the existing services of the appellant, is not persuasive, the Commission found otherwise.

We now come to the second question. At the threshold of the hearing in the Superior Court, the appellant was- confronted with the determination of the Utilities Commission, which is by law presumed to be prima facie just and reasonable. The appellant contends that in the hearing below the court erred in requiring it to go forward with evidence since on appeals from the Utilities Commission to the Superior Court, the trial is de novo. In the absence of a showing that the decision of the Commission was clearly unreasonable and unjust, the appellee on appeal to the Superior Court is entitled to an affirmance of the decision of the Commission. Corp. Com. v. R. R., 170 N. C., 560, 87 S. E., 785. As pointed out in Utilities Com. v. Trucking Co., supra, Stacy, C. J., 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.” Therefore, upon appeal from the Commission to the Superior Court, the duty of going forward with evidence rests on the appellant, if the appellee elects to stand upon the presumption that the determination of the Commission is prima facie just and reasonable. McIntosh on Procedure, 608, where it is said: “If a plaintiff has introduced sufficient evidence of facts giving rise to a presumption, or a conclusion which the court will draw, and not the jury, . . . it is necessary for the defendant to go forward with evidence to meet this presumption; otherwise, he will lose.”

On this record the trial court was justified in the conclusion reached and the judgment entered. The judgment of the court below is

Affirmed.