State Ex Rel. Utilities Commission v. Ryder Tank Line, Inc.

130 S.E.2d 663 (1963) 259 N.C. 363

STATE of North Carolina ex rel. UTILITIES COMMISSION
v.
RYDER TANK LINE, INC., and Central Transport, Inc.

No. 474.

Supreme Court of North Carolina.

May 1, 1963.

Cannon, Wolfe & Coggin, by J. Archie Cannon, Greensboro, for Ryder Tank Line, Inc., appellant.

Martin & Whitley, by Robt. M. Martin, High Point, for Central Transport, Inc., protestant, appellant.

Bailey, Dixon & Wooten, by J. Ruffin Bailey, Raleigh, Hogue & Hill, by C. D. Hogue, Jr., Wilmington, for Bulk Haulers, Inc., appellee.

HIGGINS, Justice.

The technical objections to the form of Bulk Haulers' application and the Commission's order allowing it in part, are inconsequential. They are not sustained. We need, therefore, discuss only the questions whether the applicant has carried the burden of showing (1) a public need for the limited service, and (2) the ability to perform that service. The Commission's resolution of these questions is binding on the Court if supported by competent, material and substantial evidence "in view of the entire record." Utilities Comm., State ex rel., v. Towing Co., 251 N.C. 105, 110 S.E.2d 886; G.S. § 62-121.5 et seq. (Truck Act of 1947).

The applicant is a new corporation operating out of Wilmington, North Carolina, and organized for the purpose of carrying the described liquid or dry commodities in tank or hopper motor vehicles over irregular routes between all points in North Carolina. The evidence disclosed that Diamond Alkali Company has just finished at Wilmington a storage facility for bulk caustic soda. The Texas Gulf Sulphur Company is in the process of finishing a storage facility for molten sulphur. The President of the Wilmington Chemical Terminal testified the terminal is a warehouse facility, receiving caustic soda and liquid sulphur from tanker ships and barges by water from points in Texas; that present facilities are sufficient to store 3,500 long tons of caustic soda and 8,000 tons of molten surphur; that these products are basic in the manufacture of textiles, paper, and fertilizer, and other commodities, and that heretofore these manufacturers have been required to keep on hand as much as two months' supply. With the warehousing of these products at Wilmington, only a few days' supply is necessary, thereby saving thousands of dollars in inventories.

In particular, Mr. Packer, President of Wilmington Chemical Terminal, Inc., testified: "We are supporting the petition for two reasons: one, we find it necessary to have local haulers who have terminals nearby simply so that we can get the trucks at exactly the time we need them. It really does not work in having these 75 miles away, they have to be local so we can get them quickly; that is very necessary for us. Number two is this, ws specifically are supporting it because presently at this time we are soliciting new accounts * *; twice in the last two months I have had to tell people who are coming in here that there were no local terminals in there, that the trucking service in my opinion was inadequate. This in itself keeps us from getting new business."

Mr. Henly, Southern Traffic Manager for Burlington Industries, testified: "I am supporting the application. The reason for this is that we are large user of chemicals, at our various textile plants which we now secure from vendors in states other than North Carolina, we feel that the new facilities that are being established in the State of North Carolina that a carrier certificated in Wilmington, at the origin of the supply, would be to our advantage. It is my intention to use this carrier if the certificate is granted to Bulk Haulers."

The Vice President of the North Carolina National Bank of Wilmington testified: "I am satisfied that if the certificate of authority is granted that funds are available to Bulk Haulers, Inc., for the operation of the business."

The evidence of many witnesses (some of which is sketchily quoted) was sufficient to show a present need for available motor carrier service of the type granted to Bulk Haulers, Inc. The evidence amply shows that a carrier based in Wilmington is essential to the future development of that port's potential storage and distribution of caustic soda and molten sulphur. A need is now present. The present availability of the service is a need for its further expansion. This the Commission may properly consider.

The protesting carriers are authorized to carry many commodities. They are based many miles from the storage facilities at Wilmington. The transportation of caustic soda and molten sulphur, and the equipment to carry them, are only incidental to the protestants' other activities. Bulk Haulers, Inc., will carry only soda and sulphur. Its tanker trucks will be operating from Wilmington. A hurried call may be answered by having a loaded tanker on the road within minutes. The advantages are obvious. The evidence of convenience and need is substantial. "It is to be remembered that what constitutes ``public convenience and necessity' is primarily an administrative question with a number of imponderables * * *." Utilities Commission v. Great Southern Trucking Co., 223 N.C. 687, 28 S.E.2d 201. "(T)he 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." Utilities Commission, State ex rel. v. Ray, 236 N.C. 692, 73 S.E.2d 870.

The evidence before the Utilities Commission was sufficient to sustain its findings. The judgment of the Superior Court overruling the exceptions and approving the Commission's order is

Affirmed.