State Ex Rel. Utilities Commission v. City Coach Co. ( 1951 )

BabNhill, J.,

concurring: While I am in accord with the majority decision on the merits of this controversy, I wish to make it crystal clear that, in my opinion, the Utilities Commission had no right to appeal to this Court from the ruling of the court below.

While the rights of the respective parties are fixed by Ch. 134, P.L. 1933, now General Statutes Ch. 62, Art. 4, the right of appeal from the judgment entered, being procedural in nature, is controlled by the provisions of Ch. 989, Session Laws of 1949 (G.S. 62-26.6 et seq.), which was adopted prior to the hearing in the Superior Court.

Briefly stated, the pertinent provisions of that Act are these: (1) the party adversely affected by a decision of the Utilities Commission may petition for a rehearing and “if the decision (on the petition to rehear) fails to grant the full relief prayed for in the petition, or . . . after a decision becomes final by reason of the failure of the Commission to act,” the petitioner may appeal within the time and under the conditions specified in the Act, G.S. 62-26.6; (2) upon such appeal the cause shall be entitled “State of North Carolina on relation of the Utilities Commission against” the appellant, to be designated by name in the caption, G.S. 62-26.1; (3) on the appeal “the complainant in the original complaint before the Commission shall be a party to the record and each of the parties to the proceeding before the Commission shall have a right to appear and participate in said appeal,” G.S. 62-26.8; (4) any party may appeal to the Supreme Court from the judgment of the Superior Court "under the same rules and regulations as are prescribed by law for appeals, except that the Utilities Commission, if it shall appeal, shall not be required” to give appeal bond, G.S. 62-26.12. (Italics supplied.)

Thus, in providing for appeals in cases originating before the Utilities Commission, the only references to the Commission are the one requiring its name to appear in the caption and the one exempting it from the requirement that the appellant give an appeal bond. G.S. 1-210, 1-285. Even if we concede that these provisions are sufficient to permit it to appeal in proper instances, the right of appeal in Utilities Commission cases is subject to existing statutory rules regulating appeals generally, and the only parties who are permitted to appeal to this Court are the parties “aggrieved” by the judgment entered in the Superior Court. G.S. 1-271.

The party aggrieved, within the meaning of this provision, is the one whose rights have been directly and injuriously affected by the judgment entered in the Superior Court. Freeman v. Thompson, 216 N.C. 484; McIntosh P. & P. 767-8.

Under no view of this case could it be said that the Commission is a “party aggrieved” by the judgment from which it appeals. The reversal of its ruling may have inflicted some slight injury to its pride of opinion. Even if such was the case, this is the full extent to which it is affected.

The provisions for appeal in cases originating before the Utilities Commission leave much to be desired. The requirement that the original complainant — here the Gastonia Transit Company — shall be made a party to the action was not followed. Perhaps this was for the reason the statute is so indefinite in this respect. In any event, it would seem that the parties acted under the apprehension that it was necessary for the Commission to appeal in order to give the Transit Company an opportunity to be heard in this Court. Under such circumstances, particularly where there is merit in the appeal, we should not dismiss ex mero motu.

Let me presume to suggest that the requirement of the statute in respect to the parties to the action on appeal may be observed by naming both parties defendants and designating one “petitioner” and the other “respondent,” in this manner: “State of North Carolina ex rel. Utilities Commission v. City Coach Company, petitioner, and Gastonia Transit Company, respondent.” Since only the party whose petition for rehearing has been denied in whole or in part is granted the right to appeal to the Superior Court, the party designated as petitioner would, in every case, be the appellant.