Hergott v. Nebraska State Ry. Commission

• Decision Date: 21 July 1944
• Docket Number: 31782.
• Citation: 15 N.W.2d 418,145 Neb. 100
• Parties: HERGOTT et al. v. NEBRASKA STATE RY. COMMISSION (ANDERSON et al., Interveners).
• Court: Nebraska Supreme Court

15 N.W.2d 418

145 Neb. 100

HERGOTT et al. v. NEBRASKA STATE RY. COMMISSION (ANDERSON et al., Interveners).

No. 31782.

Supreme Court of Nebraska

July 21, 1944

Syllabus by the Court.

1. Nebraska state railway commission is a constitutionally created body, and, under section 20, art. IV of the Constitution, it is endowed with powers and duties which include 'the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.'

2. In conformity with the constitutional provision, the legislature has the right to prescribe how the Nebraska state railway commission may proceed and what authority it may exercise in granting certificates of public convenience and necessity for operation of motor vehicles for hire intrastate.

3. The show-cause order in the instant case is sufficiently comprehensive to acquaint the carrier with the nature of the proceedings. It is not the name given to the pleading but whether the person charged was apprised of the charge against him.

4. All statutes relating to the same subject are considered parts of a homogeneous system; so, too, all statutes in pari materia must be taken together and construed as if they were one law and effect be given to every provision.

5. The Nebraska state motor carriers act (Comp.St.Supp.1941 sec. 75-222 to and including sec. 75-238) places on the Nebraska state railway commission the duty to regulate common carriers by motor vehicles, and to that end the commission may establish reasonable requirements with respect to continuous and adequate service. Comp.St.Supp.1941, sec 75-222.

6. Section 75-228(d), Comp.St.Supp.1941, provides that any certificate of public convenience and necessity, issued under such section, shall specify the service to be rendered, the routes over which, and the territory within which, the carrier is authorized to operate; and 'there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, * * *.' Such section does not confer upon the commission continuing jurisdiction to change suspend, or revoke, in whole or in part, a certificate of public convenience and necessity.

7. The power to attach terms, conditions and limitations granted by section 75-228(d), Comp.St.Supp.1941, is inadequate to permit what, in effect, is a modification of the separate provision of the act, section 75-231, Comp.St.Supp.1941.

8. Section 75-231, Comp.St.Supp.1941, is a special statutory provision with regard to a particular subject and, as such, controls the general provisions with regard to such subject.

9. The language appearing in section 75-231, Comp.St.Supp.1941: 'after notice and hearing, be suspended, changed or revoked in whole or in part for wilful failure to comply with any provisions of this Act or with any lawful order, rule or regulation of this Commission promulgated thereunder, or with any term, condition or limitation of such permit or certificate' makes the requirement that the suspension, change or modification of the certificate, in whole or in part, must be for wilful failure to comply with any provisions of this act, or with any lawful order, rule or regulation of the commission promulgated thereunder, or with any term, condition or limitation of such permit or certificate, and an order of the commission which does not include such a finding of wilful violation is irregular and will be set aside on appeal.

R. E. Powell, of Lincoln, and Baldwin & Pike, of Hebron, for appellant.

Walter R. Johnson, Atty. Gen., Edwin Vail, Asst. Atty. Gen., and W. F. Manasil, of Burwell, for appellee.

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

MESSMORE Justice.

This is an appeal from an order of the Nebraska state railway commission, changing and revoking, in part, the certificate of public convenience and necessity, issued to Clem Hergott, doing business as Nebraska Transport Service, Hubbell, Nebraska. For convenience, the Nebraska state railway commission will be hereinafter referred to as the commission; Clem Hergott, doing business as Nebraska Transport Service, as appellant; and Ray Peake, doing business as Peake Oil Company of Hubbell, Nebraska, will be referred to as Peake.

Prior to the enactment of chapter 142, Laws 1937, the Nebraska motor carrier act, Peake, as a carrier, transported petroleum products. On November 30, 1937, the commission issued to Peake a certificate of public convenience and necessity under application No. M-2332. Section 75-228(d), Comp.St.Supp.1937, provided that under such circumstances Peake would be required only to show the operations previously performed by him on April 1, 1936, in keeping with the 'grandfather' clause contained in section 75-228(d), supra, and the certificate of public convenience and necessity was issued under the application, No. M-2332. The authorized operation granted Peake as a common carrier for hire in intrastate commerce was the transportation of petroleum products exclusively and specifically. The route or territory authorized was: 'Irregular routes from Hubbell and Superior, to and from Orleans and Chester, and occasionally to and from Oshkosh and Lamar and Omaha, and various points in the State at large.'

Appellant filed application No. M-6368 with the commission June 25, 1940, requesting that the certificate of public convenience and necessity, previously issued to Peake, be transferred to him. On July 23, 1940, the commission issued a certificate of public convenience and necessity to appellant, authorizing operation as a common carrier by motor vehicle for hire in intrastate commerce. This certificate granted the appellant the exact and identical authority previously granted to Peake.

On June 12, 1942, an order to show cause was entered against the appellant, to appear June 30, 1942, and show cause, if any there be, why his certificate should not be suspended, revoked or altered for abandonment of service and cessation of operations over all, or a part of, the territory, and for failure to comply with the lawful rules and regulations of the commission, and for wilful failure to comply with the provisions of the Nebraska motor carrier act and with the lawful orders and regulations promulgated thereunder. Hearing was had on July 15, 1942. On September 11, 1942, an examiner's report was filed, recommending that the order entered on June 12, 1942, be vacated in part and sustained in part, and the certificate issued to appellant to be altered to read: 'Service Authorized: Petroleum products in bulk. Route or Territory authorized: Irregular routes from Superior as a point of origin, to Fairbury, Reynolds, Benedict and Bradshaw as points of destination.' Exceptions to the order were filed, argument had thereon November 4, 1942, before the commission en banc; exceptions were overruled on December 15, 1942. The commission approved the order, and further ordered appellant to forthwith cease and desist all operations as a common carrier of petroleum products in Nebraska intrastate commerce except in conformity with the certificate as modified. July 15, 1943, motion for rehearing was filed, argued before the commission en banc September 29, 1943, and overruled October 7, 1943; hence this appeal.

In the 1937 session of the legislature an act was passed, commonly referred to as the Nebraska motor carrier act. Comp.St.Supp.1937, secs. 75-222 to 75-238, inclusive. Amendments of a minor nature have been made to the act as originally passed, but it is now substantially the same in form. Comp.St.Supp.1941.

The commission is a constitutionally created body. Section 20, art. IV of the Constitution, provides in part: 'The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.'

In conformity with such constitutional provision, the legislature has the right to prescribe how the commission shall proceed and what authority it may exercise in granting certificates of public convenience and necessity for operation of motor vehicles for hire intrastate.

As said in Enyeart v. City of Lincoln, 136 Neb. 146, 285 N.W. 314, 317, 'All statutes relating to the same subject are considered as parts of homogeneous system * * *.' And in Steeves v. Nispel, 132 Neb. 597, 606, 273 N.W. 50, 55, this court said: 'So too, all statutes in pari materia must be taken together and construed as if they were one law, and, if possible, effect be given to every provision.' Citing Hendrix v. Rieman, 6 Neb. 516, and other cases. See, also, O. G. Pierce Co. v. Century Indemnity Co., 136 Neb. 78, 285 N.W. 91; Lennox v. Housing Authority of City of Omaha, 137 Neb. 582, 290 N.W. 451, 291 N.W. 100. In conformity with the foregoing authorities, we consider the Nebraska motor carrier act:

The act recites a policy to 'regulate transportation by motor carriers * * * in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest; promote adequate, economical and efficient service * * * develop and preserve a highway transportation system properly adapted to the needs of the commerce of Nebraska; * * *.' Comp.St.Supp.1941, sec. 75-222. It places upon the commission...