State Ex Rel. Utilities Commission v. Atlantic Coast Line Railroad

78 S.E.2d 780 (1953) 238 N.C. 701

STATE ex rel. UTILITIES COMMISSION
v.
ATLANTIC COAST LINE R. CO.

No. 238.

Supreme Court of North Carolina.

December 2, 1953.

B. F. Aycock, J. Russell Kirby, Fremont, Dees & Dees, Goldsboro, for Town of Fremont, appellee.

Murray Allen, R. P. Upchurch, Raleigh, for defendant appellant.

WINBORNE, Justice.

The appellant, Atlantic Coast Line Railroad Company, in excepting to the judgment of the Superior Court from which this appeal is taken, enumerates and sets forth several grounds upon which it contends that error occurred in the court below. All of them come to this, that, upon consideration of the whole record, the orders of the Utilities Commission are unreasonable, and are unsupported by competent, material and substantial evidence.

The statutes governing procedure before the Utilities Commission prescribe the rules and extent of review on appeal from an order of the Commission. The statute, G.S. § 62-26.10 provides that, on such appeal to Superior Court, the court shall review the proceeding without a jury; that such review shall be confined to the record as certified by the Commission to the court; and that the court may reverse or modify the decision of the Commission if the substantial rights of the appellants have been prejudiced because the Commission's findings, inferences, conclusions or decisions are unsupported by competent, material and substantial evidence in view of the entire record as submitted.

And this statute also provides that "Upon an appeal to the superior court * * * any * * * finding, determination, or order made by the Commission under the provisions of this chapter, shall be prima facie just and reasonable." See State ex rel. Utilities Comm. v. Atlantic Coast Line R. Co., 235 N.C. 273, 69 S.E.2d 502, 503.

Moreover, it is provided by statute G.S. § 62-39 that the Utilities Commission has power to require all transportation companies to establish and maintain all such public service facilities and conveniences as may be reasonable and just. And in State ex rel. Utilities Comm. v. Atlantic Coast Line R. Co., supra, this Court said that "the determination and order of the Commission in the performance of this duty must be considered prima facie as reasonable and just", but that this "does not preclude the transportation company affected from showing that the order was unsupported by competent, material and substantial evidence", citing Utilities Comm. v. Great Southern Trucking Co., 223 N.C. 687, 28 S.E.2d 201.

In this connection it is stated in State ex rel. Utilities Comm. v. Atlantic Coast Line R. Co., 233 N.C. 365, 64 S.E.2d 272, 275, a case treating the subject of an application of the railroad to discontinue service at a certain station, this Court in opinion by Devin, J., now Chief Justice, made this observation: "No absolute rule can be set up and applied to all cases. The facts in each case must be considered to determine whether public convenience and necessity require the service to be maintained or permit its discontinuance. The benefit to the one of the abandonment must be weighed against the inconvenience to which the other may be subjected."

Applying these provisions of the statute, as so interpreted by this Court, to the case in hand, the findings and conclusions and orders of the Commission, prima facie reasonable and just, appear to be supported by competent, material and substantial evidence. Hence, the judgment of the lower court affirming the order of the North Carolina Utilities Commission denying the application of the Atlantic Coast Line Railroad Company for permission to change Fremont, North Carolina, from a regular stop to a flag stop for its passenger trains numbers 48 and 49, is hereby

Affirmed.