Utilities Commission v. Carolina Scenic Coach Co.
| Decision Date | 09 October 1940 |
| Docket Number | 161. |
| Parties | UTILITIES COMMISSION v. CAROLINA SCENIC COACH CO. |
| Court | North Carolina Supreme Court |
This proceeding originated before the Commissioner of Public Utilities by petition of the plaintiff for a removal of certain restrictions provided in its franchise for operating a passenger motor vehicle between points south of the North Carolina State Line and Asheville, North Carolina, within said State.
The franchise referred to was obtained July 10, 1933, for the operation of motor vehicles from the South Carolina line south of Hendersonville, through Hendersonville via Mills River Section, to Asheville, North Carolina. In this franchise the petitioner was prohibited from taking on passengers in Hendersonville destined to Asheville, and from taking on passengers in Asheville destined to Hendersonville.
The petition sets up that the population, respectively, of Hendersonville and Asheville, had greatly increased since the granting of the franchise; that both cities were popular resort cities in a mountainous portion of the State much resorted to for its scenic beauty; and that during the summer months the population of both cities was vastly increased.
It was further alleged that the schedule adopted and followed by the only other franchise carrier operating between these cities did not afford sufficient facilities for passengers either way between the City of Hendersonville and the City of Asheville; that a large part of the population were denied facilities of transportation between the two points according to any schedule to which they might conform without great disadvantage and inconvenience to themselves. The petition further pointed out that generally the traveling public has become accustomed to more immediate and better transportation facilities, which resulted in those thus denied them raising a clamor, and producing a strong pressure to be taken on petitioner's cars, which petitioner with difficulty resisted.
The petition pointed out that there was a great necessity for improvement in such conditions, which might be easily met by the facilities at the command of the petitioner, but which petitioner was not allowed to furnish because of the restrictions imposed upon it in its franchise. Petitioner prayed that these restrictions be removed and that it be permitted to take on passengers at the designated points going to either city.
The matter came to a hearing before the Honorable Stanley Winborne, Utilities Commissioner, in the City of Raleigh, on August 31, 1938. The record discloses that at that time counsel appeared for the petitioner, Carolina Scenic Coach Company, and also for "the Protestant", Atlantic Greyhound Corporation. We assume that the Atlantic Greyhound Corporation, operating motor vehicles between the cities mentioned, had been permitted to intervene and to protest the granting of the relief prayed for by the petitioner.
At this hearing the Commissioner found certain facts, amongst them that the schedules maintained by the Atlantic Greyhound Corporation afforded sufficient facilities for the traveling public over the route designated, and that no further service was needed; and that if any further service was needed the Atlantic Greyhound Corporation was ready, willing, and able to provide the service. Upon what evidence the latter finding was made does not appear in the record.
The Commissioner denied the prayer of the petitioner, and the petitioner appealed to the Superior Court, setting up certain exceptions both to the order of the Commissioner and to the findings of fact upon which it was predicated, and to the conclusions of law reached by the Commissioner, amongst them that the removal of the restriction was not in the public interest. These were overruled.
Following the statute, the Commissioner made up the appeal, or report and forwarded the same to the Superior Court of Henderson County.
After the matter had been docketed in the Superior Court, the protestant, Atlantic Greyhound Corporation, claiming to do so as a result of notice duly and properly given it by the Utilities Commission, appeared and filed a written motion to have the appeal dismissed, upon several grounds: First, because the Utilities Commission had no authority to entertain the petition, or enter an order removing the restriction; and, second, because "no appeal lies to the Superior Court from an order denying the prayer of the petitioner". This motion was allowed by Judge Rousseau at the May-June Term, 1939, of Henderson Superior Court, to which the appeal had been certified, in an order dismissing the appeal, and the petitioner appealed to the Supreme Court. Upon the hearing in the Supreme Court, the judgment of Rousseau, J., was reversed. The case is reported as Utilities Commission v. Coach Co., 216 N.C. 325, 4 S.E.2d 897.
Before the introduction of evidence at the trial with which the present appeal is concerned, the Utilities Commission and the Atlantic Greyhound Corporation filed a written motion "that the appeal be heard by the presiding judge in chambers, under the provisions of Section 1097, C.S., for that the petitioner has not excepted to any findings of fact in the order of the Utilities Commissioner of the State of North Carolina, from which the petitioner appealed". This motion was denied and both the Utilities Commission and the Atlantic Greyhound Corporation excepted.
The trial was de novo and much evidence was introduced regarding the necessity for the service contended for by the petitioner, as bearing upon the propriety, reasonableness, and necessity of removing the restrictions placed upon the petitioner, which prohibited it from taking on and carrying passengers from Hendersonville to Asheville and from Asheville to Hendersonville, points in its route, covered by a schedule represented as convenient and necessary to meet the reasonable demands of passenger traffic and travel between these points. There was evidence contra on the part of the protestant.
The Utilities Commission and the protestant, Atlantic Greyhound Corporation, tendered the following issue: The court refused to submit this issue and the Utlities Commission and the Atlantic Greyhound Corporation excepted.
The court submitted the following issue: Both the Utilities Commission and the Atlantic Greyhound Corporation objected and excepted.
The jury answered the issue submitted by the court "yes," and, thereupon, judgment was entered ordering that the restrictions placed upon petitioner's franchise be removed, and that it be permitted to accept passengers at Hendersonville and at Asheville and transport them between these cities. From this judgment the Utilities Commission and the Atlantic Greyhound Corporation appealed. The Utilities Commission, however, did not perfect its appeal and is not a party here.
There were numerous exceptions on the part of the Utilities Commission and the protestant to the instructions given to the jury. They are not reproduced here in detail, because their discussion is not essential to the decision.
In addition to the exceptions noted, the trial judge was requested by the Utilities Commission and the Atlantic Greyhound Corporation to review the exceptions taken to the findings and conclusions of the Utilities Commissioner and pass upon them seriatim, which the court refused to do. This resulted in numerous exceptions by the Utilities Commission and the Atlantic Greyhound Corporation, alike in purport, and addressed to this phase of the case.
I. M. Bailey, of Raleigh, H. G. Hudson, of Winston-Salem, and L. B. Prince, of Hendersonville, for appellant Atlantic Greyhound Corporation.
M. M. Redden, of Hendersonville, J. W. Pless, Sr., of Asheville, and C. D. Weeks, of Hendersonville, for appellee Carolina Scenic Coach Co.
As appears from the foregoing statement, this case came here at the Fall Term, 1939, upon an appeal from an order dismissing the plaintiff's appeal to the Superior Court, upon the contention by the Utilities Commission and the Atlantic Greyhound Corporation that no appeal lay from the order of the Utilities Commissioner. The court was of the contrary opinion, holding that such an appeal was proper under the express wording of the statute, cited by appellant in the case at bar, C.S. § 1097, Michie's 1935 Code: "From all decisions or determinations made by the utilities commissioner any party affected thereby shall be entitled to an appeal." Also by virtue of Chapter 134, Public Laws of 1933, Section 12, providing that the Utilities Commissioner and his Associate Commissioners , etc.
The principal questions raised here may be summarized: The appellant no longer questions the right of appeal, but...
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