dissenting: The protestant was entitled to a hearing de novo upon the merits — not a mere jaculation from one court to another, in which that hope was born a-dying. Corp. Com. v. Cannon Mfg. Co., 185 N. C., 17, 116 S. E., 178. The kind of hearing afforded on this appeal might have been had upon certiorari without any statutory appeal. It was neither de novo nor upon the merits. The merits are bound up in a factual, not a legal, situation, to be determined upon the existence or nonexistence of public convenience and necessity, which is made the basis of an initial franchise, as well as of the power of the Commission to grant competitive rights where a franchise has already been given. The presumption of prima facie reasonableness of the Commission’s order or determination (G. S., 62-21) is to be considered as bearing on the quantum of evidence necessary to establish the affirmative of that issue. Meeker & Co. v. Lehigh Valley R. Co., 236 U. S., 412, 430, 59 L. Ed., 644; Utilities Commission v. Trucking Co., 223 N. C., 687, 28 S. E. (2d), 201.
In the present case the gravamen of the controversy did not engage the attention of the court. The inquiry here was directed entirely to the question whether the Commission had departed from the judicial function, had violated the law, had acted “arbitrarily” or “capriciously,” or had made an unreasonable order — and unreasonableness was obviously understood as coupled with capriciousness, or exceeding some measure of tolerance left undefined. .
I could agree with Mr. Justice Devin that a correct result had been reached in the case if it were the province of this Court to act as jurors. But it is not competent for us to say that there is evidence to support the finding when there is no appropriate finding to support.
If, in a case of this kind, it becomes the uniform practice to frame the issue upon the statutory presumption, rather than upon the facts or findings from which the appeal was taken and to which the original *397inquiry was directed, it is scarcely worth while for any litigant to concern himself further after his initial defeat.
Of course, since the trial judge was court and jury, no issue was formally stated, but a perusal of the judgment clearly indicates the diversion from the real issues involved in the controversy. If, in a case of this sort, the issue is to be framed around the statutory presumption alone, the whole purpose of appeal upon the facts is defeated.
There should be a new trial upon the merits of the case.