State ex rel Utilities Commission v. Carolina Coach Co.

HiggiNS, J. This proceeding involves a dispute between Carolina and Southern with respect to Southern’s schedules and rates for passenger and other service between Raleigh and Durham. Carolina Coach Company operates through buses over U. S. Highway 70 and 70A between Raleigh and Durham — distance 23 miles — fare seventy cents. This right is not challenged. Since 1947 Southern Coach Company has operated buses between Durham and Wilmington by way of Holly Springs and between Raleigh and Holly Springs — distance Raleigh to Durham 37 miles — fare $1.55. If permitted to operate through service between Raleigh and Durham, Southern’s purpose is to route buses from Durham to Holly Springs to Raleigh and back to Holly Springs, thence to Wilmington, and reverse the schedule on the return from Wilmington to Durham. This change will permit Southern to eliminate the bus in use between Raleigh and Holly Springs. By its proposed change in tariff the fare between Raleigh and Durham over its line will be reduced to seventy cents and will meet the competitive fare charged by Carolina Coach Company. Southern claims the right to operate through buses between Raleigh and Durham by tacking its combined authorities which are without restrictions. Carolina denied Southern’s right to furnish this through service. It seems to be admitted that the term “through service” means without change of bus. The Commission refused to resolve the dispute, saying in any event Southern had lost any right to furnish through service under the Commission’s Rule No. 9. The rule provides: “The discontinuance or non-use of a service authorized by a certificate or permit for a period of thirty (30) days or longer without the written consent of the Commission shall be considered good cause for cancellation.” (emphasis added) Judge McKinnon held, and we think properly so, that the Commission decided the main issue upon a mistaken view of the law. A discontinuance or non-use is not a cancellation under Rule 9. It shall be considered good cause for cancellation. Insofar as cancellation is concerned, Rule No. 9 is not self-executing. The existence of the cause must be determined by the Commission as a basis for an order of cancellation. When a proceeding is heard upon a misapplication or a misinterpretation of pertinent legal principles, “the usual practice with us is to remand the case for another hearing.” Realty Co. v. Planning Board, 243 N.C. 648, 92 S.E. 2d 82; Youngblood v. Bright, 243 N.C. 599, 91 S.E. 2d 559. [671] The order of the superior court remanding the proceeding to the Utilities Commission for further consideration is supported by the record. This disposition leaves the Commission free to resolve the matters in dispute between the parties. Affirmed.