State ex rel. Utilities Commission v. Carolina Tel. & Tel. Co., 359

• Decision Date: 11 May 1966
• Docket Number: No. 359,359
• Citation: 148 S.E.2d 100,267 N.C. 257
• Court: North Carolina Supreme Court
• Parties: , 64 P.U.R.3d 243 STATE of North Carolina, ex rel. UTILITIES COMMISSION, Plaintiff, v. CAROLINA TELEPHONE AND TELEGRAPH COMPANY, Defendant.

Page 100

148 S.E.2d 100

267 N.C. 257, 64 P.U.R.3d 243

STATE of North Carolina, ex rel. UTILITIES COMMISSION, Plaintiff, v. CAROLINA TELEPHONE AND TELEGRAPH COMPANY, Defendant.

No. 359.

Supreme Court of North Carolina.

May 11, 1966.

Arendell, Albright, Reynolds & Farmer, Raleigh, for appellant Mobile Radiotelephone Corporation.

Taylor & Brinson, Tarbroro, for appellee Carolina Telephone and Telegraph Co.

LAKE, Justice.

The authority of the court to which an appeal is taken from an order of the Utilities Commission is thus stated in G.S. § 62--94:

'(b) * * * The Court may affirm or reverse the decision of the Commission, declare the same null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission's findings, inferences, conclusions or decisions are:

'(1) In violation of constitutional provisions, or

'(2) In excess of statutory authority or jurisdiction of the Commission, or

'(3) Made upon unlawful proceedings, or

'(4) Affected by other errors of law, or

'(5) Unsupported by competent, material and substantial evidence * * *, or

'(6) Arbitrary or capricious.'

Upon an appeal to this Court from a judgment of the superior court, reversing a decision of the Commission and remanding the matter for further proceedings, this Court may affirm the judgment of the superior court, if the record discloses one or more of these statutory grounds for such judgment and if such ground therefor is set forth specifically in the notice of appeal from the Commission to the superior court. G.S. § 62--94(c). In order to affirm such judgment of the superior court it is, therefore, not required that this Court concur in the ruling by the superior court upon every ground for relief set forth in the notice of appeal from the Commission to the superior court.

The superior court was in error in sustaining Carolina's exceptions to the order of the Commission, Nos. 1 through 5. It did so on the ground that 'the Findings of Fact, Conclusions and Order entered by the North Carolina Utilities Commission on May 21, 1965, are not the Findings of Fact, Conclusions and Order of the majority of the commission.'

G.S. § 62--60 provides:

'The Commission shall render its decisions upon questions of law and of facts in the same manner as a court of record. A majority of the commissioners shall constitute a quorum, and any order or decision of a majority of the commissioners shall constitute the order or decision of the Commission, except as otherwise provided in this chapter.'

There are no exceptions to this statute pertinent to this appeal. A majority of the commissioners concurred in the order set forth in the opinion by Commissioner Peters. It was, therefore, the order of the Commission. Neither of the two concurring opinions nor the two dissenting opinions indicate any disagreement with any of the findings of fact stated in the opinion of Commissioner Peters. The opinion of no other commissioner suggests any other findings of fact. The findings of fact so stated in the opinion of Commissioner Peters are, therefore, concurred in by a majority, if not all of the members of the Commission, and are, therefore, the findings of the Commission.

G.S. § 62--79(a) provides that all final orders of the Commission shall be sufficient in detail to enable the court on appeal to determine the controverted questions presented, and shall include 'Findings and conclusions and the reasons or bases therefor upon all the material issues of fact, law, or discretion presented in the record.' When these two sections of the Act are construed together, as they must be, it is apparent that the General Assembly did not intend that an order of the Commission concurred in by the majority of its members, based upon findings of fact concurred in by a majority of its members, may be reversed solely because the members of the concurring majority chose different rules, or supposed rules, of law as support for their decision and order. We do not regard the diversity of the reasons given by the three commissioners who joined in the ultimate decision and order as a sufficient ground for its reversal.

We turn, therefore, to the questions presented by the appeal with reference to the merits.

The superior court sustained Carolina's Exceptions Nos. 15 and 16, among others, to the order of the Commission, saying:

'APPELLANT'S (Carolina's) EXCEPTION No. 15 is sustained in that there is no competent, material and substantial evidence to support a Finding of Fact which could in turn support the Conclusion 'that a Certificate of Public Convenience and Necessity should be granted to the applicant in this cause to render the service proposed in the Application.'

'APPELLANT'S (Carolina's) EXCEPTION No. 16 is sustained for that there was not competent, material and substantial evidence to sustain a Finding of Fact or Conclusion that the applicant was entitled to a Certificate of Convenience and Necessity, and for that, even had there been such evidence, an order requiring the appellant to interconnect its telphone facilities with those of applicant is in excess of statutory authority of the Commission.'

The two concurring commissioners state in their separate opinions that the service proposed by the Applicant is not such as would constitute the Applicant a public utility but, nevertheless, the Applicant should be issued a certificate of public convenience and necessity since, without such a certificate, Carolina cannot be compelled to interconnect its system with that of the Applicant. To grant a certificate of public convenience and necessity to conduct a business which is not a public utility, within the definition of the statute, would be both arbitrary and in excess of the statutory authority of the Commission.

G.S. § 62--110 provides:

'No Public utility shall hereafter begin the construction or operation of any Public utility plant or system * * * without first obtaining from the Commission a certificate that public vonvenience and necessity requires, or will require, such construction, acquisition, or operation * * *.' (Emphasis added.)

One does not need a certificate of public convenience and necessity in order to engage in a business which is not that of a public utility as defined in G.S. § 62--3(23). On the other hand, the issuance of such a certificate by the Commission does not transform an ordinary business into a public utility, so as to entitle its operator to the rights of a public utility, or so as to impose upon him the duties and limitations of a public utility. Neither the Commission nor this Court has authority to add to the types of business defined by the Legislature as public utilities. It is to be remembered that we are not here determining the limits of the broader term, 'business affected with a public interest.' That the General Assembly might constitutionally declare a business to be a public utility, and require it to obtain such a certificate in order to operate, does not authorize the Commission to declare it to be so when the statutory definition of 'public utility' does not include such business. Thus, if the Applicant's proposed service is not within the definition of 'public utility' contained in the statute, the issuance of a certificate of public convenience and necessity by the Commission to the Applicant would be a nullity. It would not supply a basis for a further order conferring upon the Applicant a right which may be granted only to a public utility.

However, the service proposed by the Applicant falls clearly within the definition of 'public utility' in G.S. § 62--3, which provides:

'(23) a. 'Public utility' means a person * * *

'6. Conveying or transmitting messages or communications by telephone or telegraph, Or any other means of transmission, where such service is offered to the public for compensation.' (Emphasis added. The italicized words were inserted in the 1963 revision of Chapter 62.)

One offers service on the 'public' within the meaning of this statute when he holds himself out as willing to serve all who apply up to the capacity of his facilities. It is immaterial, in this connection, that his service is limited to a specified area and his facilities are limited in capacity. For example, the operator of a single vehicle within a single community may be a common carrier. Consequently, the Applicant proposes to render a service within the definition of 'public utility' in the statute. The Colorado Commission so ruled in a similar case. Re Telephone Answering Service, Inc., 44 PUR 3d 425.

This being true, the Applicant may not render its proposed service without obtaining from the Commission a certificate that public convenience and necessity require or will require such operation. G.S. § 62--110. Consequently, the Commission was authorized to issue to him such certificate if, but only if, the Commission has made findings of fact, supported by competent, material and substantial evidence, which findings, in turn, support the conclusion that public convenience and necessity 'require or will require' the proposed operation by the Applicant.

The Commission has found that the Applicant is 'fit, capable and financially able' to provide the proposed service and that the proposed service 'will be of convenience to the public.' These findings are supported by competent, material and substantial evidence in view of the entire record. They are, therefore, binding upon the reviewing court. State ex rel. Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 130 S.E.2d 890.

The Commission is required by G.S. § 62--65(a) in cases such as the present, to apply the rules of evidence applicable in civil actions in the superior court 'insofar as practicable.' G.S. § 62--60 provides that the Commission shall render its decision 'in the same manner as a court of record.'

The procedure before the...