Winborne, Utilities Comr. v. MacKey

BeogdeN, J.

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

Section 2613(h) provides in substance that “no . . . person . . . shall operate over the public highways in this State any motor vehicle . . . for the transportation of persons or property between cities, or between towns, or between cities and towns for compensation, except in accordance with the provisions of this act,” etc. Section 2613(1) of Michie’s Code provides that every . . . person . . . before operating any motor vehicle upon the public highway of this State for the transportation of persons or property for compensation . . . shall apply to the Commission and obtain a franchise certificate authorizing such operation,” etc. Section 7880(96) provides in substance that “every person . . . engaged in the business of keeping *556 passenger automobiles or other passenger motor vehicles for hire and for transportation of persons for compensation, shall first apply for and obtain from the Commissioner of Revenue a “for hire” license for the privilege of engaging in such business,” etc.

Consequently it is manifest that if a person transports by motor vehicle persons or property for compensation “between cities, or between towns or between cities and towns,” he must procure a franchise certificate. But if such person operates a motor vehicle for hire without regard to fixed termini, then such person is not required to procure a franchise certificate. Of course, there are certain exceptions specified in section 2613(h), such as “casual trip,” carrying “dairy products” or school students; or “motor vehicles used exclusively in carrying United States mail,” etc.

The defendants, upon the facts set out in the record, are not in a position to claim the benefit of any of the exceptions, because such facts tend to show that they are engaged in carrying passengers for compensation indiscriminately and in the pursuit of a business enterprise. If the defendants are operating busses between cities and towns for compensation and carry such passengers as may present themselves for passage, then they must procure the certificate. If they do not so carry passengers between fixed termini, then the “for hire” license authorizes such type of business. The ultimate inquiry, therefore, is whether the defendants transport passengers as aforesaid between cities and towns. There is ample evidence that they do transport passengers between Canton, Clyde, and Enka, but there is no evidence that Enka is a town or city. If Enka is a town or a city, the evidence in the record would require the procuring of a franchise certificate. If “Enka” is not a town or a city, then the defendants are operators for hire and no franchise certificate is necessary.

This Court cannot find whether “Enka” is a town or a city. The defendants assert that it is not incorporated and no act of incorporation has been called to our attention. Hence the Court cannot take judicial notice of whether it is a town or a city. Consequently, the cause is remanded to the Superior Court of Haywood County for specific finding of fact as to whether Enka is a town or a city.

Whether or not any other person or corporation holds a valid franchise over Highway No. 10 between Asheville and Clyde is not deemed material to this controversy.

Remanded.