State ex rel. Utilities Commission v. Forbes Transfer Co. , 259 N.C. 688 ( 1963 )

Bobbitt, J.

The question for decision is whether Forbes has the legal right, by combining or “tacking” the irregular route authority it purchased from F. L. Express and its original irregular route authority, to transport commodities between Wilsdn, on the one hand, anid Charlotte, Gastonia, and Asheville, on the other 'hand, provided such shipments are routed and pass through Goldsboro. Charlotte, Gas-tonia, and Asheville are west of U. S. Highway 52.

The tariff schedule filed by Forbes on March 22, 1962, applies only to shipments between Wilson, on the one hand, and Charlotte, Gas-tonia, and Asheville, on the other hand. However, in respect of Forbes’ legal rights, we perceive no difference between such shipments and shipments between any community on or east of U. S. Highway 52, on the one hand, and any community west of U. S. Highway 52 and on or east of U. S. Highway 25, on the other hand, provided such shipments are routed and pass through Goldsboro.

The Commission’s order of March 31, 1960, authorizing the sale and transfer to Forbes by F. L. Express of Certificate C-248 and the authority conferred thereby imposes no condition or restriction in respect of the exercise by Forbes of the rights conferred by Certificate C-248. Moreover, no such condition or restriction was imposed by any statutory provision or by any Commission rule or regulation then in effect. Thereafter, Rule 24(b) of the Commission’s Rules and Regulations for the Administration and Enforcement of the Truck Act, General Order No. T-100, effective December 1, 1961, was adopted. Rule 24(b) provides: “No carrier acquiring operating authority by purchase, lease or otherwise, on and after the effective date of this rule, shall taclc or join such authority to an authority already held by said carrier without the written consent of the Commission.” (Our italics) Suffice to say, Forbes acquired by purchase the rights conferred by Certificate C-248 prior to the effective date of Rule 24(b).

In support of the Commission’s order, it is contended that Forbes’ proposed shipments between Wilson, on the one hand, and Asheville, Charlotte, and Gastonia, on the other hand, via Goldsboro, ave not authorized by Forbes’ present certificates; and that Forbes must apply for a new certificate and prove to the satisfaction of the Commission that “a public demand and need exists for the proposed service in addition to existing authorized transportation service.” G.S. 62-121.15(f) (1). Certificate C-248 does not provide expressly or by necessary implication that the authority it grants relates solely to instances where Goldsboro is either the original point of shipment or the point of ultimate destination of the commodities involved. Rather, in our view, the more reasonable construction is that the authority of F.. L. Express to transport under Certificate C-248 began at Goldsboro or terminated at Goldsboro.

It is contended that G.S. 62-121.28 and G.S. 62-121.29 make no provision for the interchange of traffic and the establishment of joint rates between irregular route common carriers. Conceding, without deciding, that Forbes and F. L. Express could not have established an interchange of traffic and joint rates, when Forbes purchased from F. L. Express the rights conferred by Certificate C-248 questions as to interchange of traffic and establishment of joint rates between irregular route common carriers were eliminated.

It appears to be conceded that authority to transport general commodities includes authority to transport meats and packing house products.

No condition or restriction having been imposed by the Commission’s order of March 31, 1960, or by statute, or by a Commission rule or regulation in effect when Forbes acquired by purchase the rights conferred by Certificate C-248, it is our opinion, and we so hold, that decision must be based on Forbes’ original authority considered in relation to and in combination with the authority Forbes acquired ,by purchase from F. L. Express. When so considered, we reach this conclusion: Under its original authority Forbes is authorized to transport commodities from Wilson to Goldsboro and under the authority it purchased from F. L. Express, Forbes is authorized to transport such commodities from Goldsboro to Charlotte, Gastonia, or Asheville. Conversely, under the authority it purchased from F. L. Express, Forbes is authorized to transport commodities from Asheville, Gastonia, or .Charlotte to Goldsboro, and under its original authority it is authorized to transport such commodities from Goldsboro to Wilson. Plence, the judgment of the court below is reversed.

Reversed.