dissenting: The right of the petitioner to appeal from the decision or determination of the Utilities Commissioner, in the circumstances disclosed by the record, was affirmed at the Fall Term, 1939, 216 N. C., 325. This is now “water over the dam.” Our present concern is with the procedure in the Superior Court on such appeal — not perforce with what the procedure should be generally, but with what it ought to be on the record in this case.
It is provided by C. S., 1097 and 1098, that on exceptions to the facts as found by the Commissioner, if overruled and appeal taken therefrom, the appeal “shall be to the Superior Court in term” and there placed on the civil issue docket for preferential trial. Corp. Com. v. Mfg. Co., 185 N. C., 17, 116 S. E., 178; S. v. R. R., 161 N. C., 270, 76 S. E., 554. But if there be no exceptions to any facts as found by the Commissioner, the appeal “shall be heard by the judge at chambers at some place in the district.” The manner of hearing the appeal, then, whether at term or in chambers, is to be determined by the character of the exceptions filed. It is further provided that by consent of all the parties, “the appeal” may be heard and determined at chambers before any judge of a district through or into which the line may extend, or any judge holding court therein, or in which the person or company does business. C. S., 1099. Obviously, the appeal is to conform to the statutes granting the right and regulating the procedure. See 2 N. C. L., 69, for valuable discussion of the subject, and McIntosh on Procedure, 819.
Conceding that the exceptions in the instant case may be sufficient to raise an issue of fact — though this is seriously challenged by the appellant — it does not follow that the Superior Court was thereby empowered to go beyond the case as presented to the Utilities Commission, and enter an order which in effect amounts to the issuance by the court of a franchise certificate which the Commission has never had an opportunity to consider, on the facts as finally determined, and withhold or grant as the statute provides. The court is confined to its derivative jurisdiction. Corp. Com. v. R. R., 196 N. C., 190, 145 S. E., 19.
The following applicable provision of The Bus Law, Michie’s Code of 1939, sec. 2613 (1), subsection (f), is especially significant in the case:
*244“The commission may refuse to grant any application for a franchise certificate where the granting of such application would duplicate, in whole or in part, a previously authorized similar class of service, unless it is shown to the satisfaction of the commission that the existing operations are not providing sufficient service to reasonably meet the public convenience and necessity and the existing operators, after thirty days’ notice, fail to provide the service required by the commission.”
It appears from the record that the granting of plaintiff’s request will result in a duplication of bus service between Hendersonville and Ashe-ville. The Utilities Commissioner found that such additional service was not necessary. But even upon a contrary finding, either by the Commission or by the court, it is still a matter for the Commission to determine, within the terms of the statute, how and by whom the additional service shall be performed. This is the clear meaning and intent of the enactment.
It follows, therefore, that the issue submitted to the jury was in excess of the matters presented by the exceptions to the facts as found by the Commissioner. Upon the finding that “public convenience and necessity require additional intrastate service by bus between Hendersonville and Asheville,” the cause should have been remanded to the Utilities Commission for further proceedings as to justice appertains and the rights of the parties may require. Such procedure fully accords with the purpose of the General Assembly as expressed in the statutes on the subject. See concluding paragraph of opinion in Service Co. v. Power Co., 179 N. C., 330, 102 S. E., 625.
It is not to be overlooked that we are considering the regulation of a public service, which is primarily an administrative matter. The court’s jurisdiction in the premises is neither original nor wholly judicial in character. Corp. Com. v. R. R., 151 N. C., 447, 66 S. E., 427; Prentis v. R. R., 211 U. S., 210. As a consequence, in assuming to act with finality in the circumstances, the authority of the Commission has been cut short and the rights of the appellant disregarded. The “thirty days’ notice” provision of the statute seems to have been ignored or treated as if it were not there. The administrative features of the law are not to be set at nought by an appeal to the Superior Court. R. R. Com. v. Oil Co., 310 U. S., 573.
To the Utilities Commission, and not to the court, has been committed the duty of selecting the operator in a case like the present which involves a duplication of service. At least the initial selection is to be made by the Commission. The authority to make this selection in the first instance is nowhere vested in the court. Its jurisdiction is entirely derivative. Indeed, it may be doubted whether the statute contemplates *245any appeal from such selection except for arbitrariness or abuse of discretion. At any rate, there was error in the issue submitted and in the judgment rendered on the verdict.
Barhhill and WiNBORNE, JJ., concur in dissent.