State ex rel. Utilities Commission v. Colter

Higgins, J. The superior Court held the Commission had committed error in refusing to approve the transfer of Certificate No. 716. The alleged error consisted in the refusal to permit the applicants to introduce evidence tending to establish a convenience and necessity for the contemplated service. At the time the Commission observed that the issue of convenience and necessity had been passed on when the certificate was issued. Counsel thereafter did not offer evidence ■but agreed that issue was not then open. The controversy, therefore, involved the question whether the rights under the certificate had become dormant for failure of Myers to exercise them or to make any preparation to do so. The evidence diclosed that on February 9, 1960, Myers, with the Commission’s approval, purchased from Bumgarner and Hall the active operating authority to transfer household goods as contemplated by common carrier certificate No. C-716. For more than two years thereafter Myers did not attempt to carry any household goods but continued under other authority to carry lumber. However, before the attempt to sell to the Bonded Warehouse, Myers had leased all its lumber hauling equipment and had given up all transportation business. Hence, by transferring an unused certificate of authority which had been gathering dust for more than two years, Myers had opportunity to pick up $2,200.00. Implicit in the Commission’s approval of the transfer from Bum-garner and Hall to Myers was the public duty on the part of the transferee to render the service called for in the certificate. Hough-Wylie v. Lucas, 236 N.C. 90, 72 S.E. 2d 11. The Truck Act of 1947 and the amendments placed upon the Commission the responsibility of requiring the holder of the certificate to render the service contemplated. A substantial rather than a simulated performance is required to support a bona fide carrier operation. Utilities Com. v. Motor Express, 232 N.C. 174, 59 S.E. 2d 578. [273] The orders of the Utilities Commission are presumed to be valid. Its findings of fact will not be disturbed if supported by substantial evidence. Utilities Com. v. Trucking Co., 223 N.C. 687, 28 S.E. 2d 201; Utilities Com. v. Coach Co., 218 N.C. 233, 10 S.E. 2d 824. Findings so supported are binding on the Superior Court. They are no less binding here. The Commission’s findings and conclusions are supported by the record. They fully warrant the Commission in refusing to approve the transfer requested in the petitioners’ application. In remanding the cause to the Commission for further hearing the trial court committed -error. The judgment is Reversed.