State ex rel. Utilities Commission v. Services Unlimited, Inc.

9 N.C. App. 590 | N.C. Ct. App. | 1970

GRAHAM, Judge.

Appellants set forth in their brief the following as the question to be decided on appeal:

“Did the North Carolina Utilities Commission err in holding that radio paging service as sought by the applicant-appellee is not subject to the regulation of the Utilities Commission and exempt from its jurisdiction?”

A consideration of appellants’ question would involve a review of the Commission’s original order of 28 July 1969. No appeal was taken from that order and time for giving notice and perfecting appeal has expired. G.S. 62-90. We are, therefore, without jurisdiction to review the original order, and the only question properly before us is whether the Commission erred in denying appellants’ motion “for hearing and amendment of order.”

G.S. 62-80 provides that the Commission may at any time, upon proper notice to parties and after opportunity for hearing, rescind, alter or amend any order or decision made by it. This authority is obviously discretionary. An application for rehearing “is addressed to and rests in the discretion of the administrative agency. ...” 2 Am. Jur. 2d, Administrative Law, § 537, p. 348. “[A]n appeal does not lie from the denial of a petition to rehear.” Utilities Comm. v. R.R., 224 N.C. 762, 32 S.E. 2d 346.

Appellants contend, however, that the Commission abused its discretion in denying their motion and refusing to amend its original order. This contention is based on allegations in the motion that G.S. 62-119 through 62-124, which became effective subsequent to the hearings on the application, require a different result than that reached by the Commission on the question of its jurisdiction to regulate the type of service which the applicant seeks to offer. However, the effective date of these statutes was 11 June 1969, more than six weeks before the Commission rendered its original order. If appellants’ argument with respect to the effect and applicability of these statutes is correct, their remedy was to appeal from the original order. They failed to do so, and consequently they may not now present, through an attempt to appeal from the denial of their motion to reopen the matter, the exact question which could have been presented by a timely appeal from the original order. “A court, having power to grant a rehearing, may entertain a petition for rehearing, filed after the time for appeal from its original order has expired, but in considering whether or not to grant the rehearing, such consideration will not enlarge the time for appeal from the original order. . . .” Utilities Comm. v. R.R., supra.

Appellants’ motion was filed almost three months after time for filing exceptions and giving notice of appeal had expired. We are of the opinion that no abuse of discretion by the Commission has been shown, and the order denying appellants’ motion must, therefore, be affirmed.

Affirmed.

Judges Brock and Morris concur.