Tbe appeal in this case presents tbe question of tbe validity of an order of tbe Utilities Commission granting franchise certificate to tbe Gastonia Transit Company to operate buses over seven-tentbs of a mile of tbe route now served by tbe City Coacb Company.
Tbe court below beld that tbe order was void for tbe reason that tbe Utilities Commission bad granted tbe Transit Company’s application for •transportation service wbicb would duplicate in part a previously authorized similar class of service without having found that tbe existing operation was not providing sufficient service to reasonably meet tbe public convenience and necessity as required by statute.
Undoubtedly tbe ruling appealed from would find support in tbe present statute, Chapter 1132, Session Laws of 1949, now codified as G.S. 62-121.52 (7), but this proceeding was instituted before tbe Utilities Commission in 1947, and tbe order of tbe Commission now under consideration was entered 30 July, 1947. Thereafter it was pending on appeal from tbe Commission in tbe Superior Court of Gaston County until beard in March, 1951. It is provided in tbe Bus Act of 1949 (sec. 40 of Chap. 1132) that “this Act shall not apply to any proceeding which has been beard and is awaiting a decision of tbe Commission or in wbicb tbe Commission has entered its decision or order prior to its effective date (Oct. 1, 1949).” So that tbe validity of tbe order of tbe Commission entered in 1947 must be judged by tbe controlling statute then in force. Chapter 136, Session Laws of 1927, amending and re-enacting previous statutes relating to buses provided that “tbe Commission shall refuse any application for passenger franchise over a route where there has already been established one or more passenger lines, unless it is shown to tbe satisfaction of tbe Commission that tbe existing operations are not providing sufficient service to reasonably meet tbe public convenience and necessity. . . .” But by Chap. 440, Session Laws of 1933, tbe 1927 statute was amended to read as follows: “Tbe Commission may refuse to grant any application for a franchise certificate where tbe granting of such application would duplicate, in whole or in part, a previously authorized similar class of service, unless it is shown to tbe satisfaction of tbe Commission that tbe existing operations are not providing sufficient service to reasonably meet tbe public convenience and necessity. . . .” This statute was codified as 62-105 (f).
An exámination of tbe wording of tbe statute in force when tbe order of tbe Utilities Commission was entered leads to tbe conclusion that tbe *492General Assembly bad at that time authorized the Utilities Commission in its discretion, in carrying out the purposes of the Bus Act, for the public benefit, to grant or refuse application for a franchise certificate to operate passenger buses over a designated route, though it might duplicate in part an authorized similar class of service. But the authority to the Commission to exercise its discretion was qualified by the implied direction in the next clause that if it be shown to the satisfaction of the Commission that the previously authorized operator was not rendering adequate service, or failed after notice to provide the required service, then it would be the duty of the Commission to grant to the properly qualified applicant franchise to operate. The authority to grant a franchise certificate for the operation of passenger buses on the highway must in any event be predicated upon a showing of public convenience and necessity therefor.
This conclusion seems to be supported by the decision of this Court in Utilities Commission v. Trucking Co., 223 N.C. 687, 28 S.E. 2d 201, where it was said, Chief Justice Stacy speaking for the Court: “Nor is it to be overlooked that in 1933, the Commission was given authority to grant or refuse 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 operators are not providing sufficient service reasonably to meet the public convenience and necessity.” And in a concurring opinion in that case by Justice Barnhill it was said: “Under the express language of the motor bus law the power of the Commission to grant franchises to a passenger or freight carrying corporation involves the exercise of discretion and judgment. . . . The term . . . ‘may refuse to grant’ clearly import the exercise of discretion and judgment. We have consistently held that the courts will not review or reverse the exercise of discretionary power by an administrative agency except upon showing of capricious, unreasonable, or arbitrary action, or disregard of law.” Justice Barnhill’s concurring opinion in this case was subsequently adopted by the Court in Utilities Comm. v. McLean, 227 N.C. 679, 44 S.E. 2d 210.
And in Utilities Commission v. Coach Co., 224 N.C. 390, 30 S.E. 2d 328, Justice Denny writing the opinion of the Court, after quoting G.S. 62-105 (f), used this language in interpretation thereof: “Under the provisions of the foregoing statute, the Commission may in its discretion grant a franchise which would duplicate in whole or in part a previously authorized similar claim of service, and when it is shown to the satisfaction of the Commission that 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 *493service required by the Commission, it would be its duty to do so. The language is that the Commission may refuse to grant tbe additional franchises unless it is shown to the satisfaction of the Commission that certain facts exist as set forth in the statute.”
Hence, it would seem logically to follow that where the Commission under the statute in force in 1947 has found upon sufficient evidence “that numerous people use the service of the -Gastonia Transit Company in going to and from work to places in and bordering Gastonia which are not served by the City Coach Company, and that public convenience and necessity for the operation of the Gastonia Transit Company has been clearly shown,” and the Commission has upon such finding issued franchise certificate to the Transit Company, its order should not be vacated, notwithstanding there was no finding of inadequate service by the Coach Company.
What constitutes public convenience and necessity is primarily an administrative question and involves determination, among other things, of whether there is a substantial public need for the service, whether existing carriers meet this need, and whether it would impair the operations of existing carriers contrary to the public intent. Utilities Comm. v. Trucking Co., supra. And the determination of the Utilities Commission is declared by statute to be prima facie just and reasonable. G.S. 62-26.10; Utilities Comm. v. Coach Co., supra.
The ruling of the court below on the motion to dismiss the appeal from the Utilities Commission to the Superior Court seems to be in accord with the facts and the rules governing appeals from the Commission.
No procedural question is raised or decided on this appeal, but we note the statute G.S. 62-26.7 prescribes that when an appeal shall be taken from an order of the Utilities Commission the case shall be entered on the docket of the Superior Court as “State of North Carolina on relation of the Utilities Commission” as party plaintiff, and it is further provided by G.S. 62-26.12, “Any party may appeal to the Supreme Court under the same rules and regulations as are prescribed by law for appeals.” Where the Utilities Commission as an administrative agency of the State establishes rates and regulations for those engaged in public service, or exercises similar functions, it properly should appear as a party to enforce its orders in the public interest, but when the Utilities Commission sits as a court of record to determine the rights of rival claimants to a valuable franchise, it is somewhat anomalous to find it appearing in this Court to uphold its order from which one or the other party had appealed. However, this procedure seems to have been authorized by the General Assembly in the statutes noted. Compare G.S. 1-271.
For the reasons herein stated we conclude that the court below was in error in holding the order of the Utilities Commission appealed from was *494invalid. On the record and under the statutes in force at the time the order was entered the Utilities Commission was entitled to have its order affirmed. The cause should be remanded to the Utilities Commission for such further regulations as may be necessary in adjusting the rights of the parties to this proceeding, in the public interest.
Reversed.