Canada, Application of

• Decision Date: 26 April 1951
• Docket Number: No. 32938,32938
• Citation: 47 N.W.2d 507,154 Neb. 256
• Parties: Application of CANADA. CANADA v. TRANSIT, Inc. et al.
• Court: Nebraska Supreme Court

Page 507

47 N.W.2d 507

154 Neb. 256

Application of CANADA CANADA v.TRANSIT, Inc. et al.

No. 32938.

Supreme Court of Nebraska.

April 26, 1951.

Syllabus by the Court.

1.The matter for decision in an appeal from an order of the Nebraska State Railway Commission, while acting within its jurisdiction, is that the order is or is not unreasonable or arbitrary.

2.The Nebraska State Railway Commission may interpret or clarify a certificate of convenience and necessity if it is indefinite, ambiguous, or uncertain in its terms or provisions.

3.Sections 75-228, 75-229, and 75-230, R.R.S.1943, provide the exclusive method for obtaining a valid certificate of convenience and necessity.

4.In determining the issue of public convenience and necessity, controlling questions are whether the operation will serve a useful purpose responsive to a public demand or need; whether this purpose can or will be served as well by existing carriers; and whether it can be served by applicant in a specified manner without endangering or impairing the operations of existing carriers contrary to public interest.

Lawrence W. Moore, Omaha, R. E. Powell, Lincoln, Einar Viren, and Rosewater Mecham, Stoehr, Moore & Mecham, all of Omaha, for appellant.

Anderson, Storms & Anderson, Holdrege, for appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an appeal from an order of the Nebraska State Railway Commission granting a certificate of convenience and necessity.

The application of Earl A. Canada, doing business as Canada Transport, of Bertrand, Nebraska, appellee, made on the 20th day of December 1948, states that he sought authority to operate as a motor common carrier for hire to transport petroleum and its products in bulk in intrastate commerce by irregular routes upon the highways of Nebraska from and to all refining, producing, and shipping terminals in the state to points and places in the state at large; that any existing, conflicting authority be amended to eliminate duplication; and that the proposed service was required by public convenience and necessity because no present authority existed for the service proposed to and from many locations in the area he desired to serve.

The commission, after hearing and report by one of its examiners, recited, and the parties agree, that it issued appellee a certificate on September 26, 1946, authorizing him to transport liquid petroleum in tank trucks over irregular routes from Superior to and from Benedict, Lincoln, Holdrege, Fairmont, Curtis, McCook, Indianola, Orafino, and Stockville, and occasionally to and from points within the state at large; from McCook to Grant and Hayes Center; from Curtis to Stockville and Moorefield; and that the commission disagreed with the recommendations of the examiner.The commission found that appellee was willing and able to perform the proposed operations as required by law and the rules and regulations of the commission; that public convenience and necessity required the service desired to be performed by appellee; that exceptions to the report of the examiner should be in part sustained; and that the certificate of September 26, 1946, granted to appellee should be revoked.

The order was that the said certificate be revoked and that a new certificate be and was issued to appellee authorizing him to transport as a common carrier petroleum and its products in bulk, in tank trucks, by irregular routes between all producing, refining, and distributing points and places in Nebraska, on the one hand, and on the other hand, points and places within the counties of Chase, Hayes, Dundy, Hitchcock, Frontier, Red Willow, Gosper, Furnas, Phelps, Harlan, Kearney, Franklin and Hamilton.The motions of appellants for rehearing were denied, and this appeal is prosecuted to test the validity of the order granting and issuing to appellee the certificate.

The matter for decision in an appeal from an order of the Nebraska State Railway Commission, while acting within its jurisdiction, is that the order is or is not unreasonable or arbitrary.In re Application of Moritz, 153 Neb. 206, 43 N.W.2d 603;In re Application of Petersen & Petersen, Inc., 153 Neb. 517, 45 N.W.2d 465.

Appellee asserts that the application was not for a new certificate but was to obtain an interpretation and clarification of the certificate granted him in 1946, and that this was the substance and effect of the order appealed from.He claims jurisdiction in the commission to interpret and clarify a previously issued certificate.It is competent for the commission to do this if the certificate is indefinite, ambiguous, or uncertain in its terms or provisions.In re Application of Meyer, 150 Neb. 455, 34 N.W.2d 904;Kassebaum v. Nebraska State Railway Commission, 142 Neb. 645, 7 N.W.2d 464.

In contradiction of the foregoing claim of the appellee as to the nature of the application and effect of the order is his declaration in the discussion of the case that the order of April 7, 1950, (involved in this appeal)'cancelled the above certificate, (of September 26, 1946) and granted a new certificate to appellee * * *.'The application was clearly for a new unlimited certificate to transport petroleum and its products from and to all refining, producing, and shipping terminals in the state to all points and places in the state, for many of which appellee had no authority to transport oil and its products to and from them.The nature of the certificate sought was also characterized by the request in the application that any existing authority in conflict with the new operations proposed be amended to eliminate the duplication.The commission understood that appellee was seeking new authority and a new certificate, and not interpretation or clarification of an existing one.In the notice of hearing of the application it stated he was requesting 'an EXTENSION of his operations as a common carrier' and 'Any duplication of operating rights will be eliminated.'The examiner recommended '* * * that the applicant's present certificate be clarified so as to eliminate the alleged ambiguity * * *.'The commission denied this because '* * * the...