#### STATE OF NORTH CAROLINA Ex Rel. NORTH CAROLINA UTILITIES COMMISSION v. THE CITY OF KINSTON et al.

(Filed 20 May, 1942.)

1. Utilities Commission § 4—

Tlie provision of C. S., 1097, that any party affected by an order of the Utilities Commissioner shall be entitled to appeal, and the provision of sec. 12, ch. 134, Public Laws 1933, that any party to a proceeding before the i Commission may appeal to the Superior Court, necessarily mean to grant the right of appeal only to a 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.

2. Same—

A railroad company filed petition with the Utilities Commission to discontinue certain intrastate trains. Certain cities, counties and a committee of the area affected were heard as protestants in opposition to the petition. No application to intervene and no order making them parties to the proceeding appear in the record. *Held,:*Protestants are not entitled to appeal from the order of the Utilities Commission granting the petition, the record failing to disclose that they have any interest which is, or may be affected by the order of the Commission.

3. Appeal and Error § 3a—

A party who has no legal interest which is affected by the order or judgment objected to, may not appeal merely to see how the question may strike the Court.

4. Appeal and Error § 22—

The Supreme Court can judicially know only what appears of record.

Appeal by Atlantic Coast Line Railroad Company from *Frizzelle, J.,*in Chambers at Nashville, 23 April, 1942. From Edgecombe.

Proceeding before Tbe North Carolina Utilities Commission.

Tbe record reveals that tbe Atlantic Coast Line Railroad Company filed a petition with Tbe North Carolina Utilities Commission for permission to discontinue trains Nos. 38-37 and 36-39 between Rocky Mount and Kinston, and trains Nos. 33 and 34 and passenger service on trains Nos. 426 and 427 between Washington and Parmele. Tbe petition, however, is not a part of the record.

*360It seems that certain protestants appeared and were beard in opposition to tbe petition. Tbe protestants are named as tbe City of Kinston, tbe County of Lenoir, tbe City of Greenville, tbe County of Pitt, tbe East Carolina Chamber of Commerce, and tbe Four County Committee. However, no application to intervene and no order making tbem parties to tbe proceeding appear in tbe record.

By order of tbe Commission dated 22 May, 1941, tbe petition of tbe Railroad Company was allowed; provided satisfactory arrangements were made for “handling mail and express on tbe lines on which tbe removal of trains is authorized by this order.”

Thereafter, on 26 May, 1941, tbe protestants, styling themselves “protestants of record in this proceeding, named and admitted as parties herein,” filed exceptions to tbe order of tbe Commission, which were “overruled, disallowed and denied” by tbe Commission on 12 September, 1941.

Whereupon, tbe protestants, again styling themselves “parties of record who were made parties to this proceeding,” gave notice of appeal, stating their grounds of appeal and setting out their exceptions and assignments of error. On 26 September, 1941, by direction of tbe Commission, “transcript of tbe record in tbe matter of application of Atlantic Coast Line Railroad Company to discontinue trains . . . Docket No. 2054,” was transmitted to tbe clerk of tbe Superior Court of Edgecombe County.

On 20 March, 1942, tbe Railroad Company filed with tbe Commission its proposed arrangement for handling mail and express upon tbe discontinuance of tbe trains as authorized, and this was approved 4 April, 1942, and tbe Railroad Company so notified.

After notice, tbe protestants then moved before tbe judge of tbe Superior Court for an order “directing tbe petitioner, Atlantic Coast Line Railroad Company, to cease and desist from all efforts, plans or arrangements to carry into effect tbe provisions of tbe order issued by tbe North Carolina Utilities Commission on May 22, 1941.”

A show-cause order was issued on this motion, returnable 23 April, 1942. Upon tbe bearing of tbe motion, tbe Railroad Company filed a counter motion to dismiss tbe motion filed by tbe protestants, to dismiss tbe order to show cause, and to dismiss tbe appeal from tbe order of tbe Utilities Commission upon tbe ground that tbe matter was not properly in tbe Superior Court.

Tbe counter motion of tbe Railroad Company was denied and tbe motion of tbe protestants granted, and tbe respondent was ordered “not to discontinue tbe trains” enumerated in tbe order of tbe Utilities Commission, “until final judgment upon tbe issues in this cause in tbe Superior Court.” Tbe cause was set for trial as tbe first case at tbe June Term, 1942, Edgecombe Superior Court.

*361From this order, the Atlantic Coast Line Eailroad Company appeals, assigning error.

*Thomas W. Davis, Murray Allen, F. S. Spruill, and Gilliam & Bond for appellant Railroad Company.*

*Bailey, Lassiter & Wyatt, Thomas J. White, and George Fountain for defendants, appellees.*

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 *362below 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.