Winborne v. Mackey

• Decision Date: 23 May 1934
• Docket Number: 17.
• Citation: 174 S.E. 577,206 N.C. 554
• Parties: WINBORNE, Utilities Commissioner, v. J. D. MACKEY and S.W. MACKEY.
• Court: North Carolina Supreme Court

174 S.E. 577

206 N.C. 554

WINBORNE, Utilities Commissioner, v. J. D. MACKEY and S.W. MACKEY.

No. 17.

Supreme Court of North Carolina

May 23, 1934

Appeal from Superior Court, Haywood County; Alley, Judge.

Action for injunction by Stanley Winborne, Utilities Commissioner against J. D. Mackey and another, in which an order was entered granting a rule to show cause why defendants should not be enjoined as prayed for in the complaint. From a judgment discharging the rule, plaintiff appeals.

Cause remanded.

This action was brought to restrain the defendants from operating motor vehicles over and along North Carolina State Highway No. 10 to Enka and return, for the purpose of transporting passengers and property for compensation without procuring a franchise certificate as provided by section 2613(l) Michie's Code of 1931. At the hearing, various affidavits were offered tending to show that the defendants operate three or more passenger cars or busses and transport passengers from day to day from Canton, Clyde, and intervening points to Enka and return. No facts were found by the judge, but in cases of the present type the Supreme Court can find the facts. Hill v. Skinner, 169 N.C. 405 86 S.E. 351; Sanders v. Ins. & Realty Co., 183 N.C 66, 110 S.E. 597. The affidavits tend to show that the defendants are engaged in the business of operating busses or motor vehicles for compensation between fixed termini. While no definite schedule is disclosed, nevertheless, the affidavits tend to show continuous business on various days within approximate periods of time.

The defendants admit that they have carried persons from Canton to the plant of the American Enka Corporation in Buncombe county, but that the persons so carried are employees of the Enka Corporation. They further admit that they have not procured a franchise, but that they have paid "for hire" license prescribed by Code 1931, § 7880(96).

After hearing the evidence, judgment was entered as follows:

"The court is of opinion and finds that there is no valid outstanding franchise for the transportation of passengers by motor vehicles for compensation over Highway No. 10 between Asheville and Clyde, North Carolina, and, therefore, said highway is open to persons carrying on the business of transporting persons for compensation by motor vehicle under the provisions of the Revenue Act levying license taxes therefor. That the business conducted and the services rendered by respondents do not fall within the terms of the statute (sections 2 and 3, chapter 136, Public Laws of 1927; sections 2613(k) and 2613(l), Michie's Code 1931), requiring certain persons engaged in the transportation of persons and property for compensation over public highways by motor vehicle to apply for and obtain permission so to do from the Corporation Commission of North Carolina. That the business carried on by the respondents is excepted from the above-mentioned statutes and is governed by the terms of section 165, chapter 427, Public Laws of 1931; section 7880(96), Michie's Code 1931. That respondents have paid to the Revenue Department of the State of North Carolina the license taxes required of them under the last-mentioned statutes for the calendar year 1933, and have received from the Commissioner of Revenue 'for hire' license tags for the privilege of engaging in the business carried on by them. It is therefore * * * ordered, adjudged and decreed that the rule to show cause be vacated and discharged."

From the foregoing judgment, the complainant appealed.

Dennis G. Brummitt, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and N. A. Townsend, of Charlotte (Cansler & Cansler, of Charlotte, of counsel), for appellant.

Bourne, Parker, Bernard & DuBose, of Asheville, for appellees.

BROGDEN Justice.

Does section 2613(k) Michie's Code of 1931 or section 7880(96) apply to the business carried on by the respondents?

Section 2613(k) provides in substance that ...