Houk v. Beckley, 33757

• Decision Date: 28 October 1955
• Docket Number: No. 33757,33757
• Citation: 72 N.W.2d 664,161 Neb. 143
• Parties: , 12 P.U.R.3d 49 Earl HOUK, d/b/a Western Nebraska Transport Service, et al., Appellees, v. W. W. BECKLEY et al., Appellants.
• Court: Nebraska Supreme Court

Page 664

72 N.W.2d 664

161 Neb. 143, 12 P.U.R.3d 49

Earl HOUK, d/b/a Western Nebraska Transport Service, et al., Appellees, v. W. W. BECKLEY et al., Appellants.

No. 33757.

Supreme Court of Nebraska.

Oct. 28, 1955.

Syllabus by the Court.

1. An order of the Nebraska State Railway Commission is not reviewable by proceedings in the Supreme Court under the provisions of section 75-405, R.R.S.1943, unless and until it imposes an obligation, denies a right, or fixes some legal relationship as a consummation of an administrative process.

2. The ultimate test of reviewability of an administrative ruling is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow.

Bannister & Deines, Cozad, J. Max Harding, Lincoln, for appellants.

Robert S. Stauffer, Cheyenne, Wyo., James E. Ryan, Lincoln, for appellees.

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

SIMMONS, Chief Justice.

This is an appeal from the Nebraska State Railway Commission, hereinafter called the commission. The basic question presented is whether or not the commission has jurisdiction of the parties and subject matter of the complaint. Preliminary to that issue there is presented the question as to whether or not the order entered by the commission is an appealable order. We hold that it is not, and dismiss the appeal.

This proceeding was initiated by formal complaint filed with the commission on June 16, 1954.

The complainants alleged that they were common carriers of property under authority issued by the Interstate Commerce Commission. They further alleged that 'each conduct operations in the transportation of crude oil from various oil well batteries or storage tanks, located within the State of Nebraska, to one or more pipe line receiving stations, also located within the State of Nebraska, and that such operations are movements in interstate commerce.'

The complaint alleged that the defendant Beckley holds common carrier authority issued by the commission, and also holds authority issued by the Interstate Commerce Commission under authority of the second proviso of section 206(a) of the Interstate Commerce Act, 49 U.S.C.A. § 306(a).

It is further alleged that the defendant Kinney holds neither interstate nor intrastate authority for the transportation of the commodities here involved.

It is further alleged that the certificate issued by the commission to defendant Beckley, and registered with the Interstate Commerce Commission, 'is indefinite, ambiguous and uncertain in its terms and provisions; that said certificate does not authorize the transportation of crude oil in bulk, in tank vehicles from oil well batteries or storage tanks in Nebraska to pipe line receiving stations also located in the State of Nebraska'; and that he has permitted his authority issued by the commission to lapse and become dormant and 'now holds no operating authority thereunder and specifically holds no operating authority for the transportation of petroleum and petroleum products, in bulk, in tank vehicles to from or between points in the State of Nebraska.'

It is further alleged that defendants Beckley and Kinney have entered into a contractual arrangement under which they hold themselves out as and are soliciting and 'performing service in the transportation of crude oil, in bulk, in tank vehicles, and from oil well batteries or storage tanks in Nebraska, to pipe line receiving stations also located in Nebraska; that such operations are being conducted by the said Defendants on a for-hire basis and without proper authority therefore (sic)'; that such is without authority of either the commission or the Interstate Commerce Commission; and that the services conducted by the defendants are competitive with those of the complainants and are not required by public convenience and necessity.

The complainants prayed that the certificate issued to defendant Beckley be interpreted and clarified; that the contract arrangements between the defendants be declared to be illegal; and that they be ordered to 'CEASE AND DESIST ALL OPERATIONS BY MOTOR vehicle as common carriers of petroleum or petroleum products, in bulk, in tank vehicles, between points in the State of Nebraska.'

Defendant Kinney filed a motion to dismiss the complaint as to himself on the ground that, so far as the operations involved in the complaint are concerned, he is an employee of defendant Beckley.

Defendant Beckley filed a motion to dismiss, relying on the allegations above quoted, and contending that the 'Commission has no jurisdiction over the parties, as interstate carriers, nor of the traffic allegedly being handled by defendant Beckley for the reason that both complainants are motor carries (sic) operating in interstate commerce and the operations of defendant, complained of herein are clearly and admittedly operations performed in interstate commerce.' He contended that the allegations of the complaint above quoted constitute admissions that the traffic being handled is interstate commerce and that jurisdiction of the subject matter of the complaint lies with the Interstate Commerce Commission.

Oral argument was had on the motions. On October 20, 1954, the commission overruled the motions and ordered the defendants to answer or satisfy the complaint.

Defendant Kinney filed a motion to hold the complaint in abeyance as to himself until the issues presented by defendant Beckley were finally determined.

A motion for rehearing and reconsideration was filed by defendant Beckley.

On November 19, 1954, the motion for rehearing and reconsideration was overruled, and hearing on the complaint was ordered.

It is from that order that this appeal is taken.

Section 75-405, R.R.S.1943, provides: 'If any * * * common carrier * * * shall be dissatisfied * * * with the decision of the commission with reference to any * * * order * * * upon which there has been a hearing before the commission, * * * such dissatisfied * * * common carrier * * * may institute proceedings in the Supreme Court of Nebraska to reverse, vacate, or modify the order complained of * * *.'

Both complainants and defendants rely on this statute and our decisions construing and applying it.

The Supreme Court of the United States in Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 68 S.Ct. 431, 433, 92 L.Ed. 568, stated: 'This Court long has held that statutes which employ broad terms to confer power of judicial review are not always to be read literally. Where Congress has authorized review of 'any order' or used other equally inclusive terms, courts have declined the opportunity to magnify their jurisdiction, by self-denying constructions which do not subject to judicial control orders which, from their nature, from the context of the Act, or from the relation of judicial power to the subject-matter, are inappropriate for review.'

As stated in 42 Am.Jur., Public Administrative Law, § 196, p. 577, 'Courts are averse to review interim steps in an administrative proceeding. Whether review is sought in non-statutory or statutory proceedings, review of preliminary or procedural orders is generally not available, primarily on the ground that such a review would afford opportunity for constant delays in the course of administrative proceedings for the purpose of reviewing mere procedural requirements or interlocutory directions. Broad language of statutes providing for judicial review of orders of regulatory commissions has been construed as not extending to every order which the commission may make, and mere preliminary or procedural, as distinguished from final, orders have been held not to be within such statutes, especially where the context of the provision indicates that the orders for...