Basin Truck Co., Application of

• Decision Date: 31 March 1961
• Docket Number: No. 34847,34847
• Citation: 108 N.W.2d 388,172 Neb. 28
• Parties: Application of BASIN TRUCK COMPANY, Denver, Colorado, et al. BASIN TRUCK COMPANY and Vernon Lloyd Miller Trucking, Inc., Appellants, v. ALL CLASS I RAIL CARRIES IN NEBRASKA, Appellees.
• Court: Nebraska Supreme Court

Page 388

108 N.W.2d 388

172 Neb. 28

Application of BASIN TRUCK COMPANY, Denver, Colorado, et al.BASIN TRUCK COMPANY and Vernon Lloyd Miller Trucking, Inc., Appellants, v.ALL CLASS I RAIL CARRIES IN NEBRASKA, Appellees.

No. 34847.

Supreme Court of Nebraska.

March 31, 1961.

Syllabus by the Court

An order of the Nebraska State Railway Commission which fails to make findings of ultimate facts is irregular and will be set aside upon appeal.

Nelson, Harding & Acklie, Lincoln, Robert S. Stauffer, Cheyenne, Wyo., for appellants.

Harvey L. Goth, Lincoln, James E. Steffarud, Chicago, Ill., for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, SPENCER and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an appeal from the Nebraska State Railway Commission in proceedings involving the application of Basin Truck Company and the application of Vernon Lloyd Miller for authority to transport cement in bulk as common carriers between points in Nebraska over irregular routes.

Protests were filed to the applications and a hearing was held before an examiner upon a consolidated record.The examiner recommended that the applications be granted.

Exceptions were filed to the examiner's report and recommendation; and after hearing and argument on the exceptions before the commission, the commission entered separate orders sustaining the exceptions to the examiner's report and denying the applications.Motions for rehearing were filed and overruled.

The order of the commission denying the application of Basin Truck Company, after reciting the proceedings had up to that time in reference to the application, is as follows:

'The Commission, upon due consideration of the evidence adduced at the hearing, the Examiner's report and recommendation, the exceptions thereto and the oral arguments thereon, and being fully advised in the premises, is of the opinion and finds the Exceptions to the Examiner's report should be Sustained, the Examiner's report Overruled and the application Denied.

'ORDER

'IT IS THEREFORE ORDERED by the Nebraska State Railway Commission that ApplicationNo. M-10747, SupplementNo. 5 of Basin Truck Company, Denver, Colorado be, and the same is hereby, Denied.'The order in reference to the application of Vernon Lloyd Miller is the same except for the name of the applicant.

The appellant assign as error the failure of the commission to make findings of fact.In the motions for rehearingthe appellants alleged that the orders were contrary to law.

Section 84-915, R.S.Supp., 1959, provides in part as follows: 'Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law.'

In Young v. Morgan Drive Away, Inc., 171 Neb. 784, 107 N.W.2d 752, the court held that a finding by the commission of the ultimate facts substantially in the language of the statute was a sufficient compliance with this section.In Ferguson Trucking Co., Inc. v. Rogers Truck Line, 164 Neb. 85, 81 N.W.2d 915, the court held that an order of the commission making ultimate findings of fact in the language of the...