State Ex Rel. Utilities Commission v. Carolina Scenic Coach Co. , 216 N.C. 325 ( 1939 )

Seawell, J.

The Utilities Commission is a statutory board, exercising at times quasi-judicial functions. There is no appeal from its orders except as allowed by statute. There is a general statute regulating appeals from the Utilities Commissioner, C. S., 1097. This is, of course, the old statute relating to appeals from the Corporation Commission, but as to matters coming within its purview it becomes applicable to appeals from the Utilities Commission under the peculiar form of amendment to the law by which the Utilities Commissioner and Utilities Commission assumed the functions of the discarded Corporation Commission. See chapter 108, Public Laws of 1937.

It is the contention of the appellee that this section does not authorize an appeal from the Utilities Commission or Commissioner in this particular instance, since such matter has been dealt with more specifically in the Motor Carrier Laws — Public Laws of 1925, ch. 50 (codified 1927), ch. 136, Public Laws of 1927.

The appellee advances two reasons why the subject matter of the appeal in this ease is not covered by this general statute: First, that the Utilities Commission did not have jurisdiction in the first place to remove the restriction, since that would constitute an amendment to the franchise for which no authority is given the Commission under the statute; and, second, that the Motor Vehicle Law is the original grant of power to the Commission to give or refuse a franchise to an applicant for reasons of public convenience and necessity, is sui generis, and specifically provides an appeal on the only matter as to which the Legislature thought it advisable to give that right; that is to say, when an investigation is made of a suggested violation of the law and an order is made suspending, revoking, altering, or amending the certificate in consequence of such violation found, the holder of the certificate may appeal to the Superior Court. See section 8.

This position, it seems to us, is incompatible with section 7 of the act, conferring on the Commission regulatory powers, many of which if not subject to review would impose serious hardships upon franchise holders, even destroying or impairing property rights, without the possibility of review. We do not believe that upon a fair interpretation of the law the right of appeal was intended to be confined to the single instance pointed out, or that appeal in any other instance is unprovided for by statute on the theory expressio unius esi exclusio alterius. Such an inferential conclusion would violate the rules of liberal construction which we think ought to be given to procedural laws protecting property rights.

Another theory suggested to sustain the lower court in dismissing the appeal is the absence of any personal or property right for the protection of which the appeal could be allowed. Certainly the applicant for a franchise or privilege has no property right until it has been granted, and its denial cannot be considered an invasion of property right. Such an applicant has the right to have his application passed upon fairly and without discrimination or abuse of discretion; and possibly arbitrary and capricious action on the part of the Commission might be reviewed by a proper proceeding if there were no right of appeal. ¥e can readily conceive the propriety of a procedure which did not provide for appeal, because the subject of the application is a highly privileged activity perform&d only under public franchise and ordinarily requiring the exercise of discretion on the part of the board which passes upon the petition. We can readily understand, also, that it might not be to the public interest to have, a question of that sort passed on by a jury after its consideration by a board or commission more competent to deal with all the considerations involved.

Persuasive as these arguments might be, however, we are confronted with a statute which does not confine appeals to matters of property right and does not seem to refer the final determination to the discretion of the board or commission. C. S., 1097, Michie’s 1935 Code, is too comprehensive in its phraseology to deny its application to defendant’s appeal. “From all decisions or determinations made by the Utilities Commissioner any party affected thereby shall be entitled to appeal.” We omit the procedural part of the statute. Also, in chapter 134, Public Laws of 1933, section 12, the most general language possible is employed to cover matters of appeal from the Utilities Commissioner and his Associate Commissioners, who “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 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 rules of procedure required by sections 1097, 1098, 1099, 1100, 1101, and 1102 of the Consolidated Statutes,” etc.

Taking the law as we find it, we are of the opinion that the appeal was improperly dismissed, and the order to that effect is

Reversed.