Effenberger v. Omaha & Council Bluffs St. Ry. Co.

• Decision Date: 07 July 1948
• Docket Number: 32439.
• Citation: 33 N.W.2d 296,150 Neb. 13
• Court: Nebraska Supreme Court
• Parties: EFFENBERGER et al. v. OMAHA & COUNCIL BLUFFS ST. RY. CO. et al.

33 N.W.2d 296

150 Neb. 13

EFFENBERGER et al. v. OMAHA & COUNCIL BLUFFS ST. RY. CO. et al.

No. 32439.

Supreme Court of Nebraska

July 7, 1948

Syllabus by the Court.

1.The sole power to grant or deny a certificate of convenience and necessity to a common carrier rests with the Nebraska State Railway Commission.

2.Courts are without authority to interfere with the findings and orders of the railway commission except where it exceeds its jurisdiction or acts arbitrarily.

3.Duplicate lines of transportation by competing common carriers are ordinarily incompatible with the public interest.Such a competing line will be authorized only for compelling reasons.

4.Where an established common carrier is ready, willing, and able to comply with any reasonable order of the railway commission in providing adequate service to the public in its field, an order denying a certificate of convenience and necessity to a new, competing carrier is not arbitrary.

George E. Truman and Floersch & Floersch, all of Omaha, for appellants.

Kennedy Holland, DeLacy & Svoboda, G. C. Holdrege, Collins &amp Collins, J. A. C.

Kennedy Jr., Grenville P. North, Warren C. Schrempp, James P. Keenan, Edward F. Fogarty, Edward Sklenicka, James M. Paxson, and Herbert M. Fitle, all of Omaha, for appellees.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an application by the operators of the Fort Crook Bus Lines for a certificate of public convenience and necessity authorizing an extension of service between Bellevue, Nebraska, and Fourteenth Street and Capitol Avenue, Omaha, Nebraska.The Nebraska State Railway Commission denied the application and the applicants have appealed.

The present operations of the Fort Crook Bus Lines, hereinafter called the bus lines, are substantially as follows: From Fort Crook as line is operated to Twenty-fourth and N Streets in Omaha on HighwayNo. 73-75.From Bellevue a line is operated to Twenty-fourth and N Streets by way of HighwayNo. 31 and Bellevue Boulevard.At Twenty-fourth and N Streets passengers must change to streetcars or busses of the Omaha & Council Bluffs Street Railway Company, hereinafter called the street railway company.The proposed new service would route applicant's busses north on Thirteenth Street, from the point where HighwayNo. 31andHighwayNo. 75 come together, to Fourteenth Street and Capitol Avenue in downtown Omaha.

The evidence shows that Bellevue had an approximate population of 1,100 people in 1941 and that it now has a population of 4,600.It is located about five miles from the city of Omaha.The distance to Thirteenth Street and Capitol Avenue in downtown Omaha is 12 1/2 miles by way of Twenty-fourth and N Streets and nine and one-half miles by the proposed route.The present terminal of the bus lines at Twenty-fourth and N Streets is served by a streetcar line and a bus line insofar as downtown Omaha is concerned.There is evidence that the busses are often loaded before arriving at Twenty-fourth and N Streets to the inconvenience of the passengers unloaded at that point by the bus lines.There is much evidence in the record showing the necessity for better service to downtown Omaha from Bellevue and Fort Crook.The usual time in going from Bellevue to downtown Omaha by the means now provided is one hour and twenty minutes.Applicant proposes to provide this service by a thirty-five-minute schedule.The proposed route is over the least congested streets which would permit a faster time schedule and a maximum of safety.The evidence shows that the people of Bellevue and Fort Crook, the government employees and military personnel at the fort, and the employees of Offutt Field require better service to and from downtown Omaha than they are now receiving.We will not undertake a review of all the evidence which supports this conclusion.

The street railway company produced evidence to the effect that there was no public interest involved which required any action on the part of the railway commission.It contends also that the service rendered by it at Twenty-fourth and N Streets to downtown Omaha is adequate and as efficient as that available to the citizens of Omaha generally.There is evidence in the record that the railway commission has valued the transportation system of the street railway company at $10,483,135.The rates permitted to be charged are based on this investment and the number of passengers hauled.The margin is so narrow that any material reduction of revenue would cause the company to operate at a loss.This result would almost certainly come about if this application is granted and other similar bus lines saw fit to apply for and obtain similar privileges at the hands of the commission.It is the contention of the street railway company that if additional service is required, it, and not the applicant, should have the opportunity to provide it.This it offers to do if the railway commission concludes that the public interest requires it.

The evidence of the city of Omaha objecting to the allowance of the application is based upon the added congestion which would accrue in the downtown section of the city by having an additional number of busses operating there, and the consequent loss of taxes resulting from a loss of revenue by the streetcar company.We do not think the evidence produced by the city of Omaha is sufficient to warrant the denial of the application, assuming that there is a public necessity for granting it.The prospective loss of tax income, or the possibility of adding to the traffic problem, are not of themselves sufficient to...