State Ex Rel. North Carolina Utilities Commission v. Youngblood Truck Lines, Inc.

Johnson, J. This appeal derives from the ruling of the North Carolina Utilities Commission on protestants’ motion to dismiss the petition *454 for want of jurisdiction of the subject matter. The motion was grounded on the contention that the petitioner is not entitled to the relief sought unless it is made to appear that Helms Motor Express, Inc., the carrier with whom the petitioner seeks authority to interchange freight, desires to enter into a freight interchange arrangement with the petitioner. The motion was allowed and the proceeding was dismissed on the ground that the following jurisdictional defects were disclosed by the pleadings and the record: (1) that Helms Motor Express, Inc. is not a petitioning party to the proceeding, and (2) the petitioner does not allege that Helms Motor Express, Inc. has made, or is desirous of making, an interchange agreement with the petitioner. Thus the proceeding was not heard on its merits. This being so, the scope of decision before the Commission was limited to a consideration of facts bearing on the question of jurisdiction as disclosed by the record and the pleadings. Therefore, any facts found by the Commission outside the record and pleadings were irrelevant to the Commission’s inquiry and unnecessary to its decision. While the order entered by the Commission contains a well-reasoned discussion of the legal principles applied by it in reaching decision, nevertheless it appears that the order also contains findings deduced from sources outside the record and pleadings and which are not germane to decision. The following findings are subject to challenge in this respect and will be treated as surplusage: 1. “The Commission has judicial knowledge of the fact that irregular route carriers, although not regulated by the Commission prior to the enactment of the Truck Act, in many instances prior to January 1,1947, did interchange freight with other carriers, both regular and irregular. It likewise has judicial knowledge of the fact that all such interchange arrangements were by agreements entered into by the carriers involved.” 2. “. . . that prior to January 1, 1947, all interchange arrangements between irregular route carriers and other carriers were by virtue of an interchange agreement entered into between the carriers making such interchange.” When the case reached the Superior Court on appeal, the scope of decision there was limited, no less than before the Commission, to a consideration of factors bearing on the question of jurisdiction as disclosed by the record and the pleadings. And the Superior Court was without authority to rule on matters affecting the merits of the proceeding. “It is well established that upon a motion to dismiss an action for want of jurisdiction of the subject matter thereof, matters affecting the merits of the action cannot be considered.” 17 Am. Jur., Dismissal *455 and Discontinuance, Sec. 48; Thacker v. Hubard & Appleby, 122 Va. 379, 94 S.E. 929, 21 A.L.R. 414. However, the presiding Judge in reviewing the decision of the Commission appears to have gone further and considered and dealt with matters relating to the merits of the proceeding. For example: 1. The statement that the court is of the opinion that the order entered by the Commission “does not, as contended by the applicant, retain in the North Carolina Utilities Commission any discretion or grace as to Applicant’s rights to interchange traffic with Helms Motor Expeess, INC. if it is able to effect an interchange agreement with said carrier.” 2. The statement that Youngblood Truck Lines, Inc. “has the right if it can do so to re-establish an interchange relationship with said Helms Motor Express, Inc., and upon establishing such a relationship may put same into effect by filing the written terms of said interchange agreement with the North Carolina Utilities Commission and that the only power obtained by the North Carolina Utilities Commission in said Order is the regulatory power of assuring that all of the terms of said agreement are to the public interest just as they would be in the regulation or tariffs, schedules, operations, etc.” In making the foregoing conclusions the court was dealing with the merits of the proceeding, based in each instance on a state of facts not disclosed by the record. The questions dealt with were beyond the scope of review. They were hypothetical questions. The conclusions, and others of like import, along with the adjudications based thereon, should be eliminated. To that end, it is directed that the judgment of the Superior Court be modified so as to eliminate therefrom all conclusions and adjudications relating to matters affecting the merits of the proceeding, so that the judgment as modified shall decree that the petitioner’s exceptions be overruled and that the order of the Commission be affirmed, subject to the modifications herein directed. It is not perceived that the order of the Commission when so modified will contravene the decision of this Court in Utilities Commission v. Fox, 239 N.C. 253, 79 S.E. 2d 391. The order of the Commission aptly points out the factors which distinguish the instant case from the Fox case. We have not overlooked the fact that the protestants have brought here on this appeal only a general exception to the judgment. Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223. See also Worsley v. Rendering Co., 239 N.C. 547, 80 S.E. 2d 467; Stewart v. Duncan, 239 N.C. 640, 80 S.E. 2d 764; Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488. Nevertheless, the general exception presents the question whether errors of law prejudicial to the protestants appear upon the face of the record. *456 Dellinger v. Bollinger, 242 N.C. 696, 89 S.E. 2d 592; Bond v. Bond, 235 N.C. 754, 71 S.E. 2d 53. The errors pointed out appear on the face of the record. Conceding, arguendo, that the order entered by the Commission dismissing the proceeding contains, in addition to the findings ordered stricken, other findings or conclusions which reach beyond the scope of decision and deal with matters which are irrelevant, even so, our examination of the record leaves the impression that any such erroneous findings or conclusions are not prejudicial to the protestants, appellants. Modified and affirmed.