Christensen, Application of

• Decision Date: 30 April 1954
• Docket Number: No. 33494,33494
• Citation: 158 Neb. 601,64 N.W.2d 99
• Parties: Application of CHRISTENSEN. CHRISTENSEN v. HIGHWAY MOTOR FREIGHT, Inc. et al.
• Court: Nebraska Supreme Court

Page 99

64 N.W.2d 99

158 Neb. 601

Application of CHRISTENSEN CHRISTENSEN v.HIGHWAY MOTOR FREIGHT, Inc. et al.

No. 33494.

Supreme Court of Nebraska.

April 30, 1954.

Syllabus by the Court.

1.Courts should review or interfere with administrative and legislative action of the Nebraska State Railway Commission only so far as is necessary to keep it within its jurisdiction and protect legal and constitutional rights.

2.The Nebraska State Railway Commission has original jurisdiction and the sole power to grant, amend, deny, revoke, or transfer common carrier certificates of convenience and necessity and such proceedings are administrative and legislative in character.

3.On an appeal to the Supreme Court from an order of the Nebraska State Railway Commission, administrative or legislative in character, the only questions to be determined are whether the commission acted within the scope of its authority and whether the order complained of is reasonable and not arbitrarily made.

4.The burden is on an applicant for a certificate of convenience and necessity to show that the operation under the certificate is and will be required by the present or future public convenience and necessity.

5.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.

6.The prime object and real purpose of Nebraska State Railway Commission control is to secure adequate sustained service for the public at minimum cost and to protect and conserve investments already made for that purpose, and in doing so primary consideration must be given to the public rather than to individuals.

J. Max Harding and R. E. Powell, Lincoln, for appellant.

D. A. Russell, Shelburn & Russell, Alma, for appellees.

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

CHAPPELL, Justice.

Appellant, Paul Christensen, an intrastate motor freight carrier, doing business as Christensen Truck Line at Beaver City, filed application No. M-8232, SupplementNo. 2, with the Nebraska State Railway Commission, hereinafter called the commission, seeking to acquire the irregular operating authority heretofore issued to Severn A. Johnson of Oxford in application No. M-8350, and consolidate same an one certificate of convenience and necessity with his own more limited irregular route authority.Appellant had previously operated Johnson's rights for some time under lease from him with commission approval, which authorized irregular route transportation of commodities generally, except groceries and liquors, between points within a 20-mile radius of Edison and from points within said radial area on the one hand, and on the other hand to and from points within the state at large.As part of the same application appellant also sought an extension of authority to transport by regular route commodities generally, except those requiring special equipment, between Omaha, Lincoln, and Hastings, on the one hand, and Oxford, Beaver City, Edison, and Arapahoe, with the off-route point of Bertrand, on the other hand, together with irregular route authority between points and places within a 25-mile radius of Edison, and between points and places within said radial area on the one hand, and on the other hand, points and places in Nebraska over irregular routes.

No formal objections to the application were filed, but Highway Motor Freight, Inc., Ideal Truck Lines, and Coffey's Transfer Co., appellees herein who were motor carriers serving the same area, appeared at the hearing as interveners in opposition to the proposed extension from irregular to regular route authority and the proposed extension of radial service from 20 to 25 miles from Edison.Appellees did not oppose the transfer of Johnson's irregular route authority under application No. M-8350, and no evidence was adduced by appellant in support of his proposed extension of radial service from Edison.

After an extended hearing before a commission examiner, he filed a consolidated report which recommended: (1) Granting that part of appellant's application seeking to acquire Johnson's irregular route authority with appropriate cancellations, and issuance of a new consolidated certificate; and (2) that appellant's extension application should be granted in part.Thereafter appellees filed exceptions to only part 2 aforesaid of the examiner's report, and after hearing thereon before the commission, the exceptions were sustained and that part of appellant's application for an extension granting regular route authority was denied upon the ground, as shown by the record, that 'the present and future public convenience and necessity does not require the regular-route Extension of service by motor vehicle in Nebraska intrastate commerce as proposed by applicant in ApplicationNo. M-8232, SupplementNo. 2, * * *.'The effect of their order was to authorize appellant to transport: 'Commodities generally, except groceries and liquors, and those requiring special equipment.* * * Irregular Route Operations: Between points and places within a 20-mile radius of Edison, and between points and places within said radial area, on the one hand, and, on the other hand, points and places in Nebraska, over irregular routes.'

Appellant's motion for rehearing was subsequently overruled, and he appealed to this court, assigning that the denial of his application for extension as aforesaid was arbitrary, unreasonable, and contrary to law.We conclude that the assignment should not be sustained.

There are fundamental, well-established, and controlling rules in such cases.In Furstenberg v. Omaha & C. B. St. Ry. Co., 132 Neb. 562, 272 N.W. 756, 757, this court held: 'Courts should review of interfere with administrative and legislative action of the railway commission only so far as is necessary to keep it within its jurisdiction and protect legal and constitutional rights.'

As held in Moritz v. Nebraska State Railway Commission, 147 Neb. 400, 23 N.W.2d 545, 546: 'The Nebraska State Railway Commission has original jurisdiction and the sole power to grant, amend, deny, revoke, or transfer common carrier certificates of convenience and necessity and such proceedings are administrative and legislative in character.

* * *

* * *

'On an appeal to the Supreme Court from an order of the Nebraska State Railway Commission, administrative or legislative in character, the only questions to be determined are whether the commission acted within the scope of its authority and whether the order complained of is reasonable and not arbitrarily made.'

In Edgar v. Wheeler Transport Service, Inc., 157 Neb. 1, 58 N.W.2d 496, we held: 'The burden is on an applicant for a certificate of convenience and necessity to show that the operation under the certificate is and will be required by the present or future public convenience and necessity.'

In that connection, we have held in In re Application of Canada, 154 Neb. 256, 47 N.W.2d 507, 508, that: '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.'

See, also, In re Application of Moritz, 153 Neb. 206, 43 N.W.2d 603, 604, in which we held: 'The prime object and real purpose of Nebraska State Railway Commission control is to secure adequate sustained service for the public at minimum cost and to protect and conserve investments already made for that purpose, and in doing so primary consideration must be given to the public rather than to individuals.'

In the light of such rules, we have examined the record and summarize the evidence.It discloses that appellant had been in the trucking business since 1944, first from Oxford but now from Beaver City, handling livestock and grain under irregular route authority.The precise extent of his own authority is not disclosed by the record.However, it was concededly more limited in scope than the irregular route authority of...