State Ex Rel. North Carolina Utilities Commission v. City of Kinston

20 S.E.2d 322, 221 N.C. 359, 1942 N.C. LEXIS 469

• Court: Supreme Court of North Carolina
• Decided: May 20, 1942
• Status: Published

Opinion

Stacy, C. J.

TLe question presented at tbe tliresliold of the case is whether the protestants are entitled to prosecute the appeal from the order of the Utilities Commission to the Superior Court. The protestants rely upon Utilities Com. v. Coach Co., 216 N. C., 325, 4 S. E. (2d), 897; S. c., 218 N. C., 233, 10 S. E. (2d), 824, for an affirmative answer. The Railroad Company cites Corp. Com. v. R. R., 170 N. C., 560, 87 S. E., 785, as authority for a negative reply.

It is provided by C. S., 1097, that “From all decisions or determinations made by the Utilities Commissioner any party affected thereby shall be entitled to an appeal.” And in sec. 12, ch. 134, Public Laws 1933, it is provided that “any party to said proceeding may appeal to the Superior Court.” In Corporation Commission v. R. R., 196 N. C., 190, 145 S. E., 19, it was said that for the purposes of appeal, “those who have no property or proprietary rights which are or may be affected by orders of .the Commission, are not parties to the proceeding” within the meaning of the statute, “and have no right to appeal from such orders to the Superior Court.”

This grant of the right of appeal to any party to the proceeding, or to any party affected by the order of the Utilities Commission, must necessarily mean to any party to the proceeding who has some right or interest to be protected which in some way is or may be affected by the order of the Commission. Corp. Com. v. R. R., 197 N. C., 699, 150 S. E., 335; Corp. Com. v. R. R., 196 N. C., 190, 145 S. E., 19; S. v. R. R., 147 N. C., 483, 61 S. E., 271. Otherwise, an appeal could be taken simply to see “how it might strike the court.” Parker v. Bank, 152 N. C., 253, 67 S. E., 492. The courts are not open to “parties” who have no interest to preserve. In re Mitchell, 220 N. C., 65, 16 S. E. (2d), 476; Trust Co. v. Toney, 215 N. C., 206, 1 S. E. (2d), 538; Wade v. Sanders, 70 N. C., 277. Here, the right of the protestants to prosecute the appeal from the order of the Commission to the Superior Court is not made manifest. Whatever interest they may have in the order is undisclosed. Hence, the motion to dismiss the appeal should have been allowed. This is a matter about which we can know judicially only what appears on the record. S. v. DeJournette, 214 N. C., 575, 199 S. E., 920. “We are not permitted to refer to matters not stated in the record, nor could the court below or tbe jury consider them” —Walker, J., in S. v. R. R., 149 N. C., 470, 62 S. E., 755.

No comfort is afforded the protestants by the decision in Utilities Com. v. Coach Co., supra. Their status here is quite different from that of the Coach Company in the cited ease. There, the Coach Company had a direct pecuniary interest to serve, and it was the party affected by the order of the Commission. Here, no such interest appeal’s. The case is controlled by the decision in Corp. Com. v. R. R., supra.

Reversed.