State ex rel. Utilities Commission v. Atlantic Coast Line R. Co., 90

• Decision Date: 19 March 1952
• Docket Number: No. 90,90
• Citation: 235 N.C. 273,69 S.E.2d 502
• Parties: STATE ex rel. UTILITIES COMMISSION, v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

Page 502

69 S.E.2d 502

235 N.C. 273

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

No. 90

Supreme Court of North Carolina.

March 19, 1952

Atty. Gen. Harry McMullan and Asst. Atty. Gen. John Hill Paylor for plaintiffappellant.

Gardner, Connor & Lee, Wilson, for protestants.

R. E. Browne, III, Wilmington, Murray Allen, Raleigh, Charles Cook Howell, Wilmington, of counsel, for defendant-appellee.

DEVIN, Chief Justice.

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 now codified as G.S. § 62-26.10 provides that on such appeal to the Superior Court the review shall be on the record certified by the Commission and heard by the judge without a jury who may reverse or modify the decision of the Commission if substantial rights have been prejudiced because of findings and conclusions which are unsupported by competent, material and substantial evidence. This statute further provides that upon any appeal to the Superior Court the finding, determination or order of the Commission shall be 'prima facie just and reasonable.'

In the case at bar, on the evidence presented the Utilities Commission denied the application of defendant railroad for permission to discontinue agency service at Lucama, finding that public convenience and necessity required the continuance of agency service at this station, and that a nonagency station there would fail to serve the needs of the public.

On appeal, the judge below reversed the finding and order of the Utilities Commission, on the ground that there was no substantial evidence on the record which would support the conclusion reached by the Commission that public convenience and necessity required continuance of agency service at Lucama. The judge stated in the judgment that his conclusion was influenced by the decision of this Court in Utilities Comm. v. Atl. Coast Line R. R., 233 N.C. 365, 64 S.E.2d 272, 275, where the application of the railroad to discontinue agency service at Stokes was considered and the order of the Utilities Commission denying the application reversed. In that case, however, it was said: '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.'

The statute confers upon the Utilities Commission the power to require transportation companies to establish and maintain all such public service facilities and conveniences as may be reasonable and just, G.S. § 62-39, and the determination and order of the Commission in the performance of this duty must be considered prima facie as reasonable and just. This, however, does not preclude the transportation company affected from showing that the order was unsupported by competent, material and substantial evidence. Utilities Com. v. Trucking Co., 223 N.C. 687, 28 S.E.2d 201. The power conferred upon the Utilities Commission to require transportation companies to maintain substantial service to the public will not be denied even though the service may be unremunerative when singled out and related only to a particular instance or locality, if the loss be viewed in relation to and as a part of the overall operations of profitable transportation. Utilities Comm. v. Atl. Coast Line R. R., 233 N.C. 365, 64 S.E.2d 272. 'The question in each case must be determined in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier.' Washington ex rel. Oregon R. & N. Co. v. Fairchild, 224 U.S. 510, 32 S.Ct. 535, 540, 56 L.Ed. 863.

Hence, the determination of the propriety of the judgment below depends upon the particular facts shown at the hearing before the Commission.

It appears that Lucama is an incorporated town having a population of...