Furstenberg v. Omaha & Council Bluffs Street Ry. Co.

• Decision Date: 08 April 1937
• Docket Number: 29841.
• Citation: 272 N.W. 756,132 Neb. 562
• Parties: FURSTENBERG ET AL. v. OMAHA & COUNCIL BLUFFS ST. RY. CO. ET AL.
• Court: Nebraska Supreme Court

272 N.W. 756

132 Neb. 562

FURSTENBERG ET AL. v. OMAHA & COUNCIL BLUFFS ST. RY. CO. ET AL.

No. 29841.

Supreme Court of Nebraska.

April 8, 1937

Syllabus by the Court.

1. Powers conferred upon an appellate court should be construed as intended to include only powers consistent with the discharge of its inherent judicial functions.

2. The grant or denial of a certificate of convenience and necessity by the railway commission requires the exercise of administrative and legislative functions and not of judicial powers.

3. Courts should review or 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.

4. On an appeal to the Supreme Court from an order of the railway commission administrative or legislative in nature, the only questions to be determined are whether the railway commission acted within the scope of its authority and if the order complained of is reasonable and not arbitrarily made.

5. The primary object of the regulation of public utilities by the railway commission is not to establish a monopoly or to guarantee the security of investment in public service corporations, but, first and at all times, to serve the interests of the public. In considering an application for a certificate of convenience and necessity for the operation of motor bus transportation, the public, and not individuals, is to be most considered.

6. A public utility operating under a nonexclusive franchise is not estopped, in a hearing before the railway commission upon application by another for a certificate of convenience and necessity to operate in the same field, to appear and object to the grant thereof.

Appeal from State Railway Commission.

Proceeding in the matter of the application of Roy J. Furstenberg, and the City of Omaha, proponent, for authority from the Nebraska State Railway Commission for the applicant Furstenberg to operate a motor transportation company in the city of Omaha Douglas County, Nebraska, and for approval of routes and schedules, wherein the Omaha & Council Bluffs Street Railway Company appeared and objected to the granting of a certificate of public convenience and necessity. From an order denying the application, the applicant and proponent appeal.

Affirmed.

Tunison & Joyner, of Omaha, for Furstenberg.

Seymour L. Smith, Harold C. Linahan, and W. W. Wenstrand, all of Omaha, for City of Omaha.

Kennedy, Holland, De Lacy & Svoboda and R. B. Hasselquist, all of Omaha, for Omaha & Council Bluffs St. Ry. Co.

Wm. H. Wright, Atty. Gen., and Edwin Vail, Asst. Atty. Gen., for Railway Commission.

Heard before DAY, PAINE, and CARTER, JJ., and TEWELL, CHAPPELL, and YEAGER, District Judges.

CHAPPELL, District Judge.

Appellants Roy J. Furstenberg, as applicant, and the city of Omaha, proponent, by precedent approval, applied to the Nebraska state railway commission for a certificate of public convenience and necessity thereby seeking authority for appellant Furstenberg to engage in the common carrier business of transporting passengers for hire by motor busses in Omaha over one definite route upon a definite schedule at a certain price. The application was denied. Motion for new trial was overruled, and both applicant and proponent, hereinafter called appellants, come to this court on appeal.

All parties concede, and the record shows, that the railway commission had jurisdiction to hear the application. Appellants contend that the railway commission erred in its refusal to hold, over objections of both appellants, that the objector, Omaha & Council Bluffs Street Railway Company, hereinafter called appellee, was barred and estopped from appearing and objecting to the granting of the certificate, and that the denial of the certificate to appellant Furstenberg was erroneous, arbitrary and unreasonable.

With reference to estoppel, earnest contention is made that on November 6, 1928, appellee, having received and unconditionally accepted a nonexclusive franchise from the city of Omaha by vote of its electorate, is estopped to appear and make objection in this proceeding. We have made studious effort to find the proposition contended for by appellants in the cases cited by them and apply it to this proceeding, but have failed. The doctrine of estoppel has application in adversary judicative controversies at law or in equity where one party is prevented from making a claim by reason of his previous conduct to the damage of his opponent. Estoppel must be reciprocal and mutual and is founded upon the idea that the acts of the party estopped must result in injury to the other party and, generally, that it would be a fraud if the right asserted be maintained. See 21 C.J. 1107 and 1139. Estoppel does not itself give a cause of action, its purpose being to preserve rights already acquired and not to create new ones. State ex inf. Shartel v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.(2d) 394, 89 A.L.R. 607.We do not discover its application ordinarily in unilateral legislative or administrative proceedings.

We said in Publix Cars, Inc., v. Yellow Cab & Baggage Co., 130 Neb. 401, 265 N.W. 234:" The grant or denial of a certificate of convenience and necessity by the railway commission requires the exercise of administrative and legislative functions and not of judicial powers." In Gallaher v. City of Lincoln, 63 Neb. 339, 88 N.W. 505, it was held that the city, acting in a ministerial and not in a judicial capacity, could not avail itself of the defense of estoppel in an action to enforce a contract contrary to an express statute. The rule generally is that admissions, in order to constitute estoppel, must relate to matters of fact and not of law. 21 C.J. 1147. The doctrine of estoppel will not ordinarily apply to a private individual when the public interest is concerned, and one private individual cannot be given an advantage over another by claiming an estoppel against the public. 21 C.J. 1189.

We must not permit a confusion between the jurisdiction of the city and the railway commission. There is a clear distinction between powers of a city to grant or withhold franchises, licenses or permits to use its streets, police power, and the exclusive constitutional power of the railway commission to impose regulation and control over the city's common carriers. In re Yellow Cab & Baggage Co., 126 Neb. 138, 253 N.W. 80.Appellants recognize these two different forces of jurisdiction by admitting and contending that such permit already obtained is insufficient to authorize common carrier service in that a certificate of convenience and necessity from the railway commission is also required. These two precedent authorizations arise from two different jurisdictional authorities, and that both are necessary is not questioned.

Appellee's franchise recognizes these separate powers. Section 2, subsec. 32 thereof, with reference to regulation, provides that such authority should be exercised by the city if the railway commission should relinquish it, or should it be held by the Supreme Court not to possess it. We have said that the railway commission has jurisdiction over Omaha common carriers even though contrary provisions are contained in its city charter. Omaha & C. B. Street R. Co. v. Nebraska State Railway Commission, 103 Neb. 695, 173 N.W. 690.We reaffirmed this position in 1934 after the grant of appellee's franchise. Omaha & C. B. Street R. Co. v. City of Omaha, 125 Neb. 825, 252 N.W. 407.The authority of the railway commission to require common carriers in Omaha to obtain from it certificates of convenience and necessity was later established. In re Yellow Cab & Baggage Co., supra; Publix Cars, Inc., v. Yellow Cab & Baggage Co., supra.

This court has expressly held that the jurisdiction of the railway commission cannot be avoided by the affirmative contractual provisions of a franchise. Such contracts are made subject to the right of the railway commission's jurisdictional regulation. Marquis v Polk County Telephone Co., 100 Neb. 140, 158 N.W. 927; McCook Irrigation & Water Power Co. v. Burtless, 98 Neb. 141, 152 N.W. 334, L.R.A.1915D, 1205.Public service corporations in each instance sought and obtained relief before the railway commission from low rates specifically imposed by their own franchises or contractual obligations without estoppel. In other cases they appear as objectors and have been granted or denied relief despite their own contractual obligations. The analogy is that not any understanding, implication, or express agreement by franchise between a municipality and a public service company, seeking to disrobe the paramount power of the railway commission, can have any legal force in this state. To assume that such a municipality, as a condition of favorably exercising its veto power with reference to the entry into its jurisdiction of a common carrier, could, by franchise, divest a constitutionally created regulatory body, such as the railway commission, of its jurisdiction is without logic. Appellee is not estopped by its franchise from invoking affirmative or negative action in this proceeding because to that extent the jurisdiction of the railway commission would be divested and its power to serve the people destroyed. See Milwaukee Electric Ry. & Light Co. v. Railroad Commission, 238 U.S. 174, 35 S.Ct. 820, 59 L.Ed. 1254; Railroad Commission of California v. Los Angeles Ry. Corporation, 280 U.S. 145, 50 S.Ct. 71, 74 L.Ed. 234; City of Englewood v. Denver & South Platte Ry. Co., 248 U.S. 294, 39 S.Ct. 100, 63 L.Ed. 253; Southwest Missouri R. Co. v. Public Service Commission, 281 Mo. 52, 219 S.W. 380; State ex inf. Shartel v. Missouri Utilities Co., supra; City of...