State ex rel. Utilities Commission v. Carolina Scenic Coach Co.

Seawell, J. As appears from the foregoing statement, this case came here at the Fall Term, 1939, upon an appeal from an order dismissing the plaintiff’s appeal to the Superior Court, upon the contention by the Utilities Commission and the Atlantic Greyhound Corporation that no appeal lay from the order of the Utilities Commissioner. The court was of the contrary opinion, holding that such an appeal was proper under the express wording of the statute, cited by appellant in the case at bar — C. S., 1097; Michie’s 1935 Coder “From all decisions or determinations made by the Utilities Commission, any party affected thereby shall be entitled to appeal.” Also by virtue of chapter 134, Public Laws of 1933, section 12, providing that the Utilities Commissioner and his Associate Commissioners “shall hear and determine such matter, thing, or controversy in dispute, pass upon and determine the issues of fact raised thereon, and the questions of law involved therein, and make and enter their findings and conclusions thereon as the judgment of the said Utilities Commissioner of North Carolina. From the decision of the said Utilities Commissioner, or the said Utilities Commission, any party to said proceeding may appeal to the Superior Court at term, as designated in and under the procedure required hy sections 1097, 1098, 1099, 1100, 1101, and 1102, Consolidated Statutes,” etc. The principal questions raised here may be summarized: The appellant no longer questions the right of appeal, but contends that the appeal in the instant case is upon matters of law altogether, and should have — 239 — been decided by tbe judge without intervention of a jury; that it was the duty of the judge to pass upon all of petitioner’s exceptions separately, and rule upon each of them, as in the practice relating to the reports of referees; that if the matter was triable at all before the jury, the sole question to be determined by the jury was whether or not convenience and necessity required the additional public service which petitioner had pointed out, and that if the affirmative was made to appear by the verdict of the jury, the whole matter should be returned to the jurisdiction of the Utilities Commissioner for him to award the franchise for such service to such person or corporation as he might deem best. Section 1098, Michie’s Code. We do not think the contention of the appellant that no question or issue of fact was raised by the petitioner’s exceptions to the findings and conclusions, and to the order of the Utilities Commissioner, can be sustained. While it may be true that the exceptions confuse findings and conclusions of fact with conclusions of law, the findings and conclusions of the Utilities Commissioner are also informal. Petitioner seems to have made a fairly good pattern on the target presented to it. Indeed, in common practice it is often difficult to separate conclusions of fact from conclusions of law. The statute, however, does not require any high degree of formality in this respect, and it is not the practice of this Court to allow mere form to defeat substantial justice, or to disregard pertinent matter for want of proper labeling. A fair analysis and comparison of the Commissioner’s findings and petitioner’s exceptions does show that the Commissioner found that the present service rendered by the Atlantic Greyhound Corporation is ample, and that there was no necessity for the service pointed out in the petition, and that the removal of the restrictions from petitioner’s franchise was not demanded by the public interest. (We omit matters of inducement and argument leading up to the decision.) The exceptions are sufficient to challenge these findings and, as required by the statute, petitioner directly excepted to the order. We are not inadvertent to the argument that the reasonableness of the Commissioner’s order is the real point at issue; and that this should be regarded and determined as a question of law. The question of reasonableness, in its relation to the relief demanded by petitioner, depends upon the factual situation developed in the de novo trial in the Superior Court, and must be independently considered. In view of the broad language of the statute — sections 1097-1098, Miehie’s Code — we are unable, on principle, to distinguish the particular exercise of power here challenged from those which, under precedents established respecting agencies to which the Utilities Commission is successor in jurisdiction and function, were held appealable and referable — 240 — to jury trial. Corporation Commission v. R. R., 140 N. C., 239, 52 S. E., 941; S. v. R. R., 161 N. C., 270, 76 S. E., 554; R. R. Connection Case, 137 N. C., 1, 49 S. E., 191, 206 U. S., 1, 17, 51 L. Ed., 933; S. v. R. R., 145 N. C., 495, 59 S. E., 570; Corporation Commission v. R. R., 185 N. C., 435, 117 S. E., 563; Corporation Commission v. Water Co., 190 N. C., 70, 128 S. E., 465; Corporation Commission v. R. R., 197 N. C., 699, 150 S. E., 335. Tbe case was, therefore, properly placed upon tbe civil issue docket and tried before a jury. Sections 1097-1098, Micbie’s Code. Tbe exceptions of tbe protestant, for tbat tbe trial judge did not take up tbe exceptions of tbe petitioner and rule upon tbem seriatim, after tbe practice relating to a referee’s report, are untenable. Those exceptions were probably taken in support of tbe contention tbat tbe appeal presented only questions of law. Rut they involve also tbe suggestion tbat tbe Utilities Commissioner bad acted upon some derivative authority, and tbat bis action required confirmation by tbe court, or some other body, to make it effectual. The Utilities Commission, or tbe Utilities Commissioner, with whose order we are concerned, is a State administrative agency of original and final jurisdiction (subject to appeal), and tbe findings and orders of tbe Commissioner require no confirmation by any court or other body as they do in tbe case of a referee. He has no more power to make a reservation of bis jurisdiction upon an appeal than tbe Superior Court has to recognize it, and, in fact, be made none. Tbe statute makes none for him. Of more significance is tbe fact tbat upon appeal tbe whole matter is beard de novo, and any competent evidence bearing upon tbe controversy may be beard, regardless of tbe proceeding before tbe Commissioner. Issues to which tbe trial court must look forward have relation both to tbe pleadings and to tbe evidence; Clinard v. Kernersville, 217 N. C., 686; Coletrane v. Laughlin, 157 N. C., 282, 72 S. E., 961; and tbe ruling of tbe court separately upon exceptions taken to findings of fact by tbe Commissioner on evidence presented to him, on a totally different and superseded bearing, would not only be futile but erroneous. Tbe question before tbe Court is not whether tbe Commissioner shall be sustained in bis ruling, but whether tbe petitioner shall be given tbe relief prayed for, upon tbe facts as they are developed de novo in tbe Superior Court. Tbe proceeding on appeal and tbe subsequent bearing is more analogous to tbat from a justice of tbe peace, at least where issues of fact are involved, as we find tbem to be here, leaving to tbe appellate court tbe unconditioned jurisdiction to find and declare tbe truth, through its own established procedure. — 241 — ¥e tbink tbe “protestant” bad full benefit of tbe instruction to tbe jury tbat tbe findings and decision of tbe Utilities Commissioner were •prima facie just and reasonable, and tbe evidence was sucb as to fully apprise tbe jury of tbe substance and purport of tbe order. We see no barm wbicb could come to appellant from tbis source. Tbe language used in section 1098 is quite different from section 16 of tbe Federal Act to regulate commerce (see Act of 4 February, 1887, and amendments), considered in Meeker v. Lehigh Valley Railroad Co., 236 U. S., 412, 430, 59 L. Ed., 644. Tbe latter provides tbat tbe “findings and order of tbe Commissioner shall be prima facie evidence of tbe facts therein stated.” Tbe statute here considered provides only tbat tbe “rates fixed, or tbe decision or determination made by tbe Commissioner, shall be prima facie just and reasonable.” It makes no mention of tbe use either of tbe findings or of tbe determination made by tbe Commissioner as evidence in tbe cause. Even if it did, we fail to find error in tbe trial on tbis exception. We tbink tbe provision tbat tbe determination of tbe Commissioner should be prima facie just and reasonable is of tbe nature of a legal presumption, wbicb requires only tbat tbe petitioner must introduce substantial evidence in support of bis case, or run tbe risk of an adverse verdict. It serves also to put tbe “laboring oar” — the duty of going forward with tbe evidence — in tbe bands of tbe real “actor,” tbe petitioner, since in tbe statute tbe natural position of plaintiff and defendant is reversed, and tbe State, on relation of tbe Utilities Commission, is made formal plaintiff. But if there should be created by tbis statute a situation by wbicb a presumption of fact remains with tbe jury until their final action, appellant bad full benefit of tbat view. Gallup v. Rozier, 172 N. C., 283, 90 S. E., 209. Both in appellant’s oral argument and in tbe brief it is urged tbat tbe sole question to be determined by tbe jury, if tbe case got tbat far, was tbat of convenience and necessity involved in tbe additional service suggested — an abstract question to wbicb tbe litigant parties might or might not have some relation upon some subsequent bearing before tbe Commissioner after tbe jury bad reached its verdict. A rather poor compensation tbis, for tbe trouble taken by tbe petitioner and tbe expense to wbicb it has been put, under encouragement of tbe statute, which, presumably, and we tbink on its face, gives it tbe right to appeal, not pro bono publico, or to tbe ultimate advantage of its adversary, but in its own individual interest. In tbis State tbe right of appeal exists only by statute, and neither the litigant parties nor tbe court itself may take any step tbat is not authorized by tbe statute, or a fair inference therefrom. Tbe Superior Court, to wbicb appeals from tbe orders of tbe Utilities Commission lie, has its own well understood legal incidents. It is a court of final juris — 242 — diction and of final resort on matters of fact and, subject to appeal and review on matters of law, its decisions are completely determinative of the controversy properly before it, and its judgments apply both -to the subject matter and to the parties of record and their privies. Constitution of North Carolina, Article IV, section 12; C. S., 1439; C. S., 638; Rhyne v. Lipscombe, 122 N. C., 650, 29 S. E., 57; Coletrane v. Laughlin, supra; Armfield v. Moore, 44 N. C., 157. There is no provision in the general law nor in the specially applicable statutes by which the Superior Court could be justified in segregating the question of convenience and necessity, or divorcing it from its relation to the litigant parties, and making of it a floating island to be subsequently captured by the Utilities Commission. Such procedure would make the Superior Court an adjunct to the administrative body, or an intermediate agency in the proceeding before it, so that the verdict of its juries and its judgments might be subordinated to the Utilities Commission for its subsequent final action. For this there is neither law nor precedent. If petitioner’s application could be considered as an original application for a certificate of convenience and necessity, which we doubt, and if upon the hearing the Utilities Commissioner had affirmatively found necessity for the service, he might have awarded the franchise to one party or another, as in his judgment might be best in the public interest. Rut the Commissioner found to the contrary, and, as the statute permits, actively presented this view in the Appellate Court. The verdict of the jury was adverse to his contention. The question had then become incidental to the rights of petitioner upon its appeal, and had become merged therein. The real question before the board, and before the court, from beginning to end, was whether or not the restrictions ought to be removed from petitioner’s franchise in the interest of the public service required. This question was properly heard according to the statute, and the practice of the court, and the verdict and judgment thereupon is final. In view of the fact that the Utilities Commission has abandoned its appeal and no longer defends its jurisdiction in this respect, if it had any, we question the right of the protcstant appellant to bring forward this question on appeal, since it has only a moral probability, no legal assurance, that it may be selected to perform the public service which it has consistently denied to be necessary. On our construction of the law regulating appeals from the Utilities Commissioner, many of the arguments addressed to the Court raise questions that are political rather than juridical. We have no power to interfere with the Legislature in its distribution and allotment of the powers of government to agencies already created — as, for instance, a — 243 — jury — or those created by it, so long as it acts within constitutional limitations. Other exceptions of appellant have been considered. Some of them are incidentally involved in the foregoing discussion. Others we do not consider of sufficient merit to justify us in disturbing the result reached in this case. We find No error.