State Ex Rel. Utilities Commission v. Carolina Coach Co. ( 1952 )

73 S.E.2d 562 (1952) 236 N.C. 583

STATE ex rel. UTILITIES COMMISSION
v.
CAROLINA COACH CO. et al.

No. 452.

Supreme Court of North Carolina.

December 10, 1952.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. John Hill Paylor for the State of North Carolina on relation of the Utilities Commission, appellee.

J. Ruffin Bailey, Raleigh, and Fuller, Reade, Umstead & Fuller, Durham, for Atlantic Greyhound Company, appellant.

Arch T. Allen, Raleigh, and L. P. Mc-Lendon, Greensboro, for Carolina Coach Company, appellant.

Shearon Harris, Charlotte, and L. P. Mc-Lendon, Greensboro, for Queen City Coach Company and Smoky Mountain Stages, Inc., appellants.

D. L. Ward, New Bern, for Seashore Transp. Co., appellant.

ERVIN, Justice.

This appeal is occasioned by conflicting provisions in the Bus Act of 1949, and presents this question for decision: Does the North Carolina Utilities Commission have regulatory supervision of operations devoted exclusively to the transportation by motor vehicle of the bona fide employees of industrial plants to and from the places of their regular employment where the person conducting the operations is engaged at the same time or at other times in carrying on the business of a common carrier by motor vehicle? As here used, the word "person" denotes "a corporation, individual, copartnership, company, association, or any combination of individuals or organizations doing business as a unit," and the term "common carrier by motor vehicle" signifies "any person which holds itself out to the general public to engage in the transportation by motor vehicle in intrastate commerce of passengers for compensation over regular routes and between fixed termini." G.S. § 62-121.46(6, 15).

The Bus Act of 1949 is now codified as Article 6C of Chapter 62 of the General Statutes. Section 3 of the Act, which appears in G.S. § 62-121.45, confers upon the North Carolina Utilities Commission "full power and authority to administer and enforce the provisions of this article, and to make and enforce reasonable and necessary rules and regulations to that end".

The conflicting provisions of the Act giving rise to the present controversy are subsections (1) and (3) of section 5, which is now embodied in G.S. 62-121.47 and deals with exemptions from regulations.

Subsection (1) of section 5 provides that "nothing in this article shall be construed to include persons and vehicles engaged in one or more of the following services if not engaged at the time or other times in the transportation of other passengers by motor vehicle for compensation: (a) transportation of passengers for or under the control of the United States government, or the State of North Carolina, or any political subdivision thereof, or any board, department or commission of the State, or any institution owned and supported by the State; (b) transportation of passengers by taxicab or other motor vehicles performing bona fide taxicab service and carrying not more than six passengers in a single vehicle at the same time and not operated on a regular route or between fixed termini; provided, no taxicab while operating over the regular route of a common carrier outside of a town or a municipality and a residential and commercial zone adjacent thereto, as such zone may be determined by the Commission as provided in (h) of this paragraph, shall solicit passengers along such route, but nothing herein shall be construed to prohibit a taxicab operator from picking up passengers along such route upon call, sign or signal from prospective passengers; (c) transportation by motor vehicles owned or operated by or on behalf of hotels while used exclusively for the transportation of hotel patronage between hotels and local railroad or other common carrier stations; (d) transportation of passengers to and from airports and passenger airline terminals when such transportation is incidental to transportation by aircraft; (e) transportation of passengers by trolley buses operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street railway service; (f) transportation by motor vehicles used exclusively for the transportation of passengers to or from religious services; (g) transportation of bona fide employees of an industrial plant to and from their regular employment; (h) transportation of passengers when the movement is within a town or municipality exclusively, or within contiguous towns or municipalities and within a residential and commercial zone adjacent to and a part of such town or municipality or contiguous towns or municipalities; provided, the Commission shall have power in its discretion, in any particular case, to fix the limits of any such zone."

Subsection (3) of section 5 specifies that "none of the provisions of this section nor any of the other provisions of this article shall apply to motor vehicles used for the transportation of passengers to or from religious services and/or in the transportation of bona fide employees of an industrial plant to and from places of their regular employment."

The general provision of subsection (1) of section 5 of the Bus Act of 1949 to the effect that the Utilities Commission retains regulatory supervision of all operations otherwise exempted from the coverage of the Act if such operations are conducted by persons "engaged at the time or other times in the transportation of other passengers by motor vehicle for compensation" is certainly broad enough to give the Utilities Commission regulatory supervision of operations devoted exclusively to the transportation by motor vehicle of the bona fide employees of industrial plants to and from the places of their regular employment where such operations are conducted by a person who is engaged at the same time or at other times in carrying on the business of a common carrier by motor vehicle; and the particular provision of subsection (3) of section 5 of the Bus Act of 1949 to the effect that neither section 5 nor any other provisions of the Bus Act "shall apply to motor vehicles used * * * in the transportation of bona fide employees of an industrial plant to and from places of their regular employment" is certainly emphatic enough to exclude from the coverage of the Act and the regulatory supervision of the Utilities Commission all operations devoted exclusively to the transportation by motor vehicle of the bona fide employees of industrial plants to and from the places of their regular employment, irrespective of whether or not such operations are conducted by persons who are engaged at the same time or other times in carrying on the callings of common carriers by motor vehicle.

This case lends itself to much writing, and tempts the appellate judge to cite many legal authorities and to split many legal hairs. When all is said, however, the case must turn on one or the other of two conflicting provisions of the same statute, and the court must invoke the aid of the appropriate canon of construction in deciding which provision is to prevail.

The relevant canon of construction may be stated in this way: Where the same statute contains a particular provision, which embraces the matter under consideration, and a general provision, which includes the same matter and is incompatible with the particular provision, the particular provision must be regarded as an exception to the general provision, and the general provision must be held to cover only such cases within its general language as are not within the terms of the particular provision. In re Steelman, 219 N.C. 306, 13 S.E.2d 544; School Commissioners v. Aldermen, 158 N.C. 191, 73 S.E. 905; Nance v. Southern R. R., 149 N.C. 366, 63 S.E. 116; Handtoffski v. Chicago Consol. Traction Co., 274 Ill. 282, 113 N.E. 620; 50 Am.Jur., Statutes, section 367; 59 C.J., Statutes, section 596.

When the conflicting provisions embodied in subsections (1) and (3) of section 5 of the Bus Act of 1949 are read in the light of this canon of construction, it is manifest that the particular provision of subsection (3) must be regarded as an exception to the general provision of subsection (1). This being true, the North Carolina Utilities Commission does not have regulatory supervision of operations devoted exclusively to the transportation by motor vehicle of the bona fide employees of industrial plants to and from the places of their employment even in cases where the persons conducting such operations are engaged at the same time or at other times in carrying on the callings of common carriers by motor vehicle.

This decision necessitates the affirmance of the judgment.

Affirmed.

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