State ex rel. Utilities Commission v. Gulf-Atlantic Towing Corp.
| Citation | 110 S.E.2d 886,251 N.C. 105 |
| Decision Date | 04 November 1959 |
| Docket Number | No. 163,GULF-ATLANTIC,163 |
| Parties | STATE of North Carolina ex rel. UTILITIES COMMISSION v.TOWING CORPORATION. |
| Court | North Carolina Supreme Court |
Rountree & Clark, Wilmington, for Gulf-Atlantic Towing Corp., respondent, appellant.
Malcolm B. Seawell, Atty. Gen., and F. Kent Burns, Asst. Atty. Gen., for N. C. Utilities Commission, appellee.
G.S. § 62-30(1) and G.S. § 62-122 confer upon the North Carolina Utilities Commission regulatory authority over the rates charged and the service given 'by railroads, street railways, steamboats, canals, express and sleeping-car companies, and all persons, firms or corporations engaged in the carrying of freight or passengers or otherwise engaged as common carriers' in intrastate traffic in North Carolina.
In the brief filed by the Attorney General for the Commission it is said: 'From a perusal of these two statutes (G.S. § 62-30 and G.S. § 62-122), it is seen that the jurisdiction of the Utilities Commission in this case is dependent upon a finding that Gatco is a common carrier engaged in the business of carrying freight.' In respect to this statement in the brief see Efland v. Southern R. Co., 146 N.C. 135, 59 S.E. 355.
Gatco assigns as error the ruling of the trial court sustaining the finding of fact of the Commission that it by its operations on the inland waterways of the State of North Carolina is a common carrier, and so holds itself out to the public. The contention of Gatco is that the Commission should have found as a fact that it is not a common carrier by its operations on the inland waterways of the State, but a private contract carrier not subject to the jurisdiction of the Commission.
The real and practically the only question presented in this case, therefore, is whether Gatco operates as a common carrier of intrastate freight between points in this State along its inland waterways.
What constitutes a common carrier, and what constitutes a contract carrier, are questions of law, but whether the carrier is acting as a common carrier or as a contract carrier is a question of fact. The fact is to be determined, in proceedings of this kind, by the Commission. The question is often a question of difficulty. The Superior Court and the Supreme Court are not appellate courts from the Utilities Commission to retry questions of fact. Facts found by the Commission are not open in the Law Courts, unless the Commission shall find facts to exist 'unsupported by competent, material and substantial evidence in view of the entire record as submitted.' G.S. § 62-26.10(e). If a factual finding as a basis for an order by the Commission is supported by competent, material and substantial evidence in view of the entire record, the finding is final. State ex rel. Utilities Commission v. Atlantic Coast Line R. Co., 235 N.C. 273, 69 S.E.2d 502; State ex rel. Utilities Commission v. Fox, 236 N.C. 553, 73 S.E.2d 464; State ex rel. Utilities Commission v. Atlantic Coast Line R. Co., 238 N.C. 701, 78 S.E.2d 780.
The definition of a common carrier at common law seems to be clearly settled. A common carrier is one who holds himself out to the public as engaged in the public business of transporting persons or property for others for compensation from place to place, offering his services to such of the public generally as choose to employ him and pay his charges. The distinctive characteristic of a common carrier is that he undertakes as a business to carry for all people indifferently or to take anybody's freight. Williams v. Kinston Manufacturing Co., 175 N.C. 226, 95 S.E. 366; The Cape Charles, 198 F. 346 (District Court, E. D. North Carolina, opinion by Connor, District Judge); State of Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 48 S.Ct. 41, 72 L.Ed. 241; 9 Am. Jur., Carriers, sec. 4; 13 C.J.S. Carriers § 3.
'Every common carrier has the right to determine what particular line of business he will follow, and his obligation to carry is coextensive with, and limited by, his holding out or profession as to the subjects of carriage.' 9 Am.Jur., Carriers, p. 432.
A private carrier of goods (sometimes called a contract carrier) is one who makes an individual contract in a particular instance for the carriage of certain goods for another to a certain destination. The private carrier of goods does not hold himself out to the public as ready to accept and carry all goods of all who offer. His contract may be for one carriage of freight or a series. Each act of transportation is a separate and individual act. It is not for the public convenience and necessity, but is a private transaction. The private or contract carrier may refuse to take the goods and refuse to contract for carriage. He is not bound to serve every person who may apply. The Cape Charles, supra; Home Insurance Co. v. Riddell, 5 Cir., 252 F.2d 1; Public Utilities Commission v. Johnson Motor Transport, 147 Me. 138, 84 A.2d 142; 9 Am.Jur., Carriers, sec. 10; 13 C.J.S. Carriers § 4.
Mt. Tom Motor Line, Inc. v. McKesson & Robbins, Inc., 325 Mass. 45, 89 N.E.2d 3, 5.
The General Assembly in G.S. § 62-121.7(13) has defined a 'common carrier by motor vehicle' as meaning 'any person which holds itself out to the general public to engage in the transportation by motor vehicle in intrastate commerce of property or any class or classes thereof for compensation, whether over regular or irregular routes.' In G.S. § 62-121.7(14) it has defined a 'contract carrier by motor vehicle' as meaning 'any person which, under individual contracts or agreements, engages in the transportation, other than transportation referred to in paragraph (13), by motor vehicle of property in intrastate commerce for compensation.' Similar definitions are set forth in the Bus Act of 1949 in respect to the transportation of passengers. G.S. § 62-121.46(5) and (6). In respect to the provisions of G.S. § 62-30(1) and G.S. § 62-122, the General Assembly has defined neither a common carrier nor a contract or private carrier.
This proceeding was heard by the Commission on the evidence and exhibits of Gatco alone. The only witness testifying before the Commission was L. M. Winslow, Vice President of Gatco, who lives in Jacksonville, Florida. This is a summary of Mr. Winslow's testimony, necessary for a decision of this appeal, except where we quote his testimony.
Gatco bids on contract work, and transports the...
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