State ex rel. Utilities Commission v. United Tank Lines, Inc.

BRITT, Judge. While respondent-appellants argue 12 questions in their brief, we think the disposition of this appeal rests on the answers to two questions: (1) Did the Utilities Commission err in its findings of fact? (2) Was the action taken by the Commission pursuant to the findings authorized? We answer the first question in the negative and the second question in the affirmative. It is settled in this jurisdiction that findings of fact by the Utilities Commission are conclusive and binding on appeal when supported by competent, material and substantial evidence in view of the entire record. State ex rel. Utilities Commission v. City of Durham, 282 N.C. 308, 193 S.E. 2d 95 (1972); State ex rel. Utilities Commission v. Petroleum Transportation, Inc., 2 N.C. App. 566, 163 S.E. 2d 526 (1968). It suffices to say that we have carefully reviewed the record and conclude that the findings of [549] fact made by the Commission are supported by competent, material and substantial evidence. Thus, we hold that the Commission did not err in its findings. G.S. 62-lll(a) provides: “No franchise now existing or hereafter issued under the provisions of this Chapter other than a franchise for motor carriers of passengers shall be sold, assigned, pledged or transferred, nor shall control thereof be changed through stock transfer or otherwise, or any rights thereunder leased, nor shall any merger or combination affecting any public utility be made through acquisition or control by stock purchase or otherwise, except after application to and written approval by the Commission, which approval shall be given if justified by the public convenience and necessity. Provided, that the above provisions shall not apply to regular trading in listed securities on recognized markets.” (Emphasis ours.) The Commission’s findings and conclusions that control of United was transferred from Harrison to respondents Mitchell on or before 11 June 1974, without prior application to and approval by the Commission, are fully supported by the evidence and the findings of fact. Transfer of control of United was tantamount to transfer of control of the franchise represented by Common Carrier Certificate No. C-253. G.S. 62-lll(d) provides: “No person shall obtain a franchise for the purpose of transferring the same to another, and an offer of such transfer within one year after the same was obtained shall be prima facie evidence that such certificate or permit was obtained for the purpose of sale.” The Commission’s conclusion that Certificate C-253 was acquired by Harrison for purpose of transferring the same to another is fully supported by the evidence and findings of fact. G.S. 62-112(b) provides in pertinent part: “Any franchise . . . , after notice and hearing, may be suspended or revoked, in whole or in part, upon complaint, or upon the Commission’s own initiative, for wilful failure to comply with any provision of this Chapter . . . .” We hold that the Commission was fully authorized to deny the application of Harrison and respondents Mitchell for approval [550] of the transfer of control of United, and to revoke Common Carrier Certificate C-253. For the reasons stated, the order appealed from is Affirmed. Judges Parker and Vaughn concur.