Winborne, Utilities Comr. v. . Browning

174 S.E. 579, 206 N.C. 557, 1934 N.C. LEXIS 241

• Court: Supreme Court of North Carolina
• Decided: May 23, 1934
• Status: Published

Opinion

BeogdisN, J.

Do sections 2613(h) and 2613(1), Michie’s Code of 1931, or section 7880(96), apply to the business carried on by the respondent ?

The identical question involved in this appeal has been considered in Winborne, Utilities Comr., v. Mackey, ante, 554. All the evidence offered at the hearing tended to show that the respondent operated motor vehicles, transporting passengers and property for compensation, and as a business between cities and towns along Highway No. 10. Consequently he is not protected by section 7880(96), as heretofore pointed out in the Maclcey case. However, the evidence also discloses that the respondent carries the United .States mail and he asserts that he is saved by an exception contained in section 2613(h), supra, which declares that “motor vehicles used exclusively in carrying the United States mail” are not required to secure a franchise certificate. The United States mail is property. Searight v. Stokes, 3 Howard, 151, 11 L. Ed., 537; In re Debbs, 158 U. S., 583, 39 L. Ed., 1102; Pakas v. U. S., 240 Fed., 350. Consequently, unless the statute had exempted motor vehicles used for carrying mail, mail carriers would have been compelled to secure a franchise certificate for the obvious reason that they were transporting property for compensation along the highways of this State. Furthermore, the motor vehicles operated by the defendant are not “used exclusively in carrying United States mail,” because all the evidence disclosed that such vehicles so carrying the mail also carried passengers and took property for compensation and in the pursuit of a business enterprise. Therefore, the defendant is required to secure a franchise certificate if he desires to continue the business disclosed by the proof.

Reversed.