#### STATE OF NORTH CAROLINA ex rel UTILITIES COMMISSION v. ABERDEEN and ROCK FISH RAILROAD COMPANY, ATLANTIC COAST LINE RAILROAD COMPANY, SEABOARD AIR LINE RAILROAD COMPANY, NORFOLK SOUTHERN RAILWAY COMPANY, and SOUTHERN RAILWAY COMPANY and MOTOR CARRIERS OF PETROLEUM and PETROLEUM PRODUCTS IN TANK TRUCKS, Members of the NORTH CAROLINA MOTOR CARRIERS ASSOCIATION, J. T. OUTLAW, Agent. and THE CITY OF WILMINGTON, NORTH CAROLINA.

(Filed 30 November, 1960.)

Appeal by the North Carolina Utilities Commission from Mints, J., May 1960 Term, New HanoveR Superior Court.

This proceeding originated before the North Carolina Utilities Commission upon its order of investigation into the rates and charges on intrastate movement of Petroleum and Petroleum Products in carload lots. Notice of hearing was served on the railroads. The City of Wilmington, The North Carolina Motor Carriers Association, Inc., J. T. Outlaw, Agent for Motor Carriers of Petroleum and Petroleum Products, intervened. At the hearing the Commission called as a witness its railroad rate expert, Mr. Low, who introduced as exhibits certain charts showing rail and truck rates for petroleum products from terminals in North Carolina to various points of delivery in this State. The evidence of the Commission’s rate expert and of the respondents and interveners was of the same general tenor as that introduced in the companion case, State of North Carolina■ ex rel Utilities Commission v. The North Carolina Motor Carriers Association and the City of Wilmington, ante 432. However, Mr. Low, on cross-examination, stated: “My whole study here is based on tariff rates without any regard to the movements. As a rate expert over the years I would say that the volume of movements has some significance in rate making. If I were making rates I would be interested in the volume of movements as distinguished from just paper rates.”

At the conclusion of the hearing, the Commission found existing rates unjust, unreasonable, and discriminatory, and ordered into effect new rates based entirely on mileage. The order provided that mileage should be determined by the highway measurements rather than rail measurements. The Commission denied rehearing. The respondents and interveners appealed to the superior court. Judge Mintz found facts and entered judgment setting aside the order of the Utili*443ties Commission and remanding the case to the Utilities Commission to be dismissed. The Utilities Commission appealed.

Thomas Wade Bruton, Attorney General, F. Kent Burns, Assistant Attorney General for the North Carolina Utilities Commission, appellant.

Donal L. Turkal, for Seaboard Air Line Railroad Company, appellee.

James A. Bistline, for Southern Railway System, appellee.

R. B. Gwathmey, Albert B. Russ, Jr., David E. Wells for Atlantic •Coast Line Railroad Company, appellee.

Simms & Simms for appellees.

Allen & Hipp, By: Edward B. Hipp for North Carolina Motor Carriers Association, appellee.

James B. Swails, Cicero P. Yow for City of Wilmington, appellee.

Higgins, J.

The questions of fact and principles of law involved in this proceeding are in substance the same as those discussed in the companion case, State ex rel Utilities Commission v. The North Carolina Motor Carriers Association, et al, ante 432. The railroads contended, however, the proviso at the end of G.S. 62-31 gives the railroads the right to reduce rates either directly or by change in classification. Bennett v. Southern R. R., 211 N.C. 474, 191 S.E. 240. The Commission contended the proviso was repealed by Chapter 725, Session Laws of 1945. This dispute may be considered and passed on by the Commission in the further hearing.

For the reasons assigned in the companion case, so much of the judgment of the Superior Court as reversed the order of the Commission is affirmed. So much of the judgment as directs the Commission to dismiss the proceeding is reversed. The Superior Court will remand the proceeding to the Utilities Commission for further hearing and disposition not inconsistent with the opinion in this and in the companion case.

Affirmed in part and reversed in part.