State ex rel. Utilities Commission v. Maybelle Transport Co.

Bobbitt, J. The cause was for hearing in the superior court upon protestants’ exceptions to the Commission’s findings and order. The court made no ruling on any of these exceptions. Instead, the order [778] of Judge Crissman remands the cause to the Commission for a determination, after further proceedings, of the precise question it had theretofore considered and decided. Notwithstanding, the arguments in .this Court relate largely to questions raised by protestants’ exceptions to the Commission’s findings and order, not to the exception of applicant (appellant here) to Judge Crissman’s order.' Judge Crissman’s order does not purport to reverse, vacate or in 'any way modify the .Commission’s order. Presumably, applicant is now exercising the franchise rights granted by the Commission. "Only a 'party aggrieved’ may appeal from the superior court to ■the Supreme Court. G.S. 1-271”; Buick Co. v. General Motors Corp., 251 N.C. 201, 205, 110 S.E. 2d 870. Moreover, G.S. 1-277, defining the' right of appeal, “prescribes, in substance, that an'appeal does 'not lie to the Supreme Court from an interlocutory order of the Superior Court, unless such interlocutory order deprives the appellant-of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. 1-277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E. 2d 377; Emry v. Parker, 111 N.C. 261, 16 S.E. 236.” Raleigh v. Edwards, 234 N.C. 528, 67. S.E. 2d 669, and cases cited. Absent circumstances affording a basis for remanding the cause •■to the Commission, the only legal right of applicant adversely af-fectedi by Judge 'Crissman’s order- was the right to have the superior court consider and decide the questions presented by protestants’ exceptions to the Commission’s 'findings arid-order. G.S. 62-26.9 prescribes the conditions under which, upon motior by any party, the court, in its discretion, may remand the proceeding in order that newly discovered evidence may be presented at a further hearing by' the Commission. Nothing in the record indicates anj :party made such motion, or that any party desired to offer further 'evidence, or ‘ that newly • discovered evidence was available. Hence there was no basis for the court, in its discretion, to remand the causi under circumstances contemplated by G.S. 62-26.9. G.S. 62-26.10, in pertinent part, provides: “The court may affirn "or reverse'the decision of the Commission, declare the-same null an( void, or remand the case for further proceedings; or it may reverse dr modify the decision if the substantial rights of the appellants hav been prejudiced because the Commission’s findings, .inferences, con elusions or decisions are: (a) in violation of constitutional provisions or (b) in excess of statutory authority or jurisdiction of the Com mission, or' '(c) made upon unlawful proceedings, or (d) affected bfl Other errors of law, or (e)' unsupported by competent, material anfl [779] substantial evidence in view of the entire record as submitted, or (f) arbitrary or capricious.” (Our italics) If a cause is remanded under G.S. 62-26.10, the order should specify the ground on which it is based and thereby indicate to the Commission the nature of its further proceedings. Judge Crissman’s order does not do so. If Judge Crissman were of the opinion that the Commission’s findings and order were “(e) unsupported by competent, material and substantial evidence in view of the entire record as submitted, or (f) arbitrary or capricious,” a proper order would have reversed the Commission’s order. There is nothing in Judge Criss-man’s order to indicate that such ground was the basis therefor. Indeed, the failure to disturb the Commission’s order indicates it was not based on such ground. This Court, under the circumstances, in the exercise of its power “to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts (N.C. Const., Art. IV, sec. 8),” Edwards v. Raleigh, 240 N.C. 137, 81 S.E. 2d 273, deems it appropriate to vacate Judge Crissman’s order and remand the cause to the superior court for consideration and decision of the questions raised by protestants’ exceptions to the Commission’s findings and order. It is so ordered. For the reasons stated, the cause is remanded to the superior court for further proceedings in accordance with the law as stated herein. Error and remanded.