Jantzen, Application of
| Decision Date | 04 February 1994 |
| Docket Number | No. S-92-038,S-92-038 |
| Citation | 511 N.W.2d 504,245 Neb. 81 |
| Parties | In re Application of JANTZEN. Henry and Vern JANTZEN, Appellees, v. DILLER TELEPHONE COMPANY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Public Service Commission: Appeal and Error. In an appeal from the Public Service Commission, an appellate court examines the record to determine whether the commission acted within the scope of its authority and whether the evidence establishes that the order in question is not unreasonable or arbitrary.
2. Public Service Commission: Appeal and Error. In reviewing a decision of the Public Service Commission, it is not the province of an appellate court to weigh or resolve conflicts in the evidence or the credibility of the witnesses; rather, an appellate court will sustain the decision of the commission if there is evidence in the record to support its findings.
3. Administrative Law: Evidence: Words and Phrases. For purposes of reviewing an order of an administrative agency, competent evidence means evidence which tends to establish the fact in issue.
4. Rules of Evidence: Words and Phrases. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
5. Statutes: Appeal and Error. Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
6. Administrative Law: Statutes: Appeal and Error. An appellate court determines the meaning of a statute independently of the determination made by an administrative agency.
7. Administrative Law: Appeal and Error. Deference is accorded to an agency's interpretation of its own regulations unless plainly erroneous or inconsistent.
8. Administrative Law: Judicial Notice: Appeal and Error. It is an established principle of appellate practice that, as a general rule, a reviewing court will not take judicial notice of the internal operating rules of administrative agencies.
9. Administrative Law: Waiver. Whether an administrative agency may waive an internal rule or regulation depends upon whether the rule or regulation was intended to (1) require the agency to exercise its independent discretion, (2) confer a procedural benefit on a class to which complainant belongs, or (3) be a mere aid to guide the exercise of agency discretion. If the rule or regulation is such an aid, then a further determination must be made as to whether the complainant has been substantially prejudiced.
10. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
11. Statutes: Legislature: Intent. It is a court's duty, if possible, to discover the Legislature's intent from the language of the statute itself.
12. Statutes. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning.
13. Trial: Evidence: Waiver. If, when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object or to insist upon a ruling on the objection to introduction of such evidence, and otherwise fails to raise the question as to its admissibility, that party is considered to have waived whatever objection he or she may have had thereto, and the evidence is in the record for consideration the same as other evidence.
14. Trial: Witnesses: Testimony. The credibility of witnesses and the weight to be given their testimony are for the trier of fact.
15. Public Service Commission: Appeal and Error. Determinations by the Public Service Commission are a matter peculiarly within its expertise and involve a breadth of judgment and policy determination that will not be disturbed by an appellate court in the absence of a showing that the action of the commission was arbitrary or unreasonable.
16. Public Service Commission. The striking of the balance between the competing interests of legitimate competition and the protection of the public interest is a matter of legislative and administrative determination peculiarly resting in the judgment of the Public Service Commission.
17. Administrative Law: Words and Phrases. Arbitrary action, with reference to administrative agencies, is action taken in disregard of the facts or circumstances of the case, without some basis which would lead a reasonable and honest person to the same conclusion.
18. Words and Phrases. A capricious decision is one guided by fancy rather than by judgment or settled purpose; such a decision is apt to change suddenly; it is freakish, whimsical, humorsome.
19. Administrative Law. An agency's judgment must be based on a factual foundation and must give due consideration to all the essential elements involved.
20. Public Service Commission: Appeal and Error. If there is evidence to sustain the findings of the Public Service Commission, an appellate court cannot substitute its judgment for that of the commission.
Jack L. Shultz and Gregory D. Barton, of Harding & Ogborn, Lincoln, for appellant.
Henry and Vern Jantzen, pro se.
The protestant-appellant, Diller Telephone Company, challenges the third and last order of the Public Service Commission (PSC), which granted the request of the applicants-appellees, Henry Jantzen and Vern Jantzen, father and son, to receive telephone service from Lincoln Telephone and Telegraph Company rather than from Diller Telephone, and ordered the Jantzens to pay Diller Telephone $338.91 to cover the latter's loss of investment. On appeal to the Nebraska Court of Appeals, Diller Telephone assigned as errors, in summary, (1) the PSC's consideration of certain evidence in concluding that the Jantzens are not receiving and would not within a reasonable time receive reasonably adequate telephone service, and (2) the arbitrary and capricious nature of its third order.
The Court of Appeals determined that Diller Telephone's failure to timely file its protest waived its opposition to the application and that it was thus precluded from participating in the proceedings before the PSC. 510 N.W.2d 482. Accordingly, the Court of Appeals, without reaching Diller Telephone's summarized assignments of error, directed the PSC to reinstate its first order, which had granted the application upon the payment of Diller Telephone's loss of investment of $97.21 and a connection charge to Lincoln Telephone.
Diller Telephone thereafter successfully petitioned this court for further review. We affirm the judgment of the Court of Appeals, as modified.
In an appeal from the PSC, an appellate court examines the record to determine whether the PSC acted within the scope of its authority and whether the evidence establishes that the order in question is not unreasonable or arbitrary. Fecht v. Quality Processing, 244 Neb. 522, 508 N.W.2d 236 (1993); Fecht v. The Bunnell Co., 243 Neb. 1, 497 N.W.2d 50 (1993); In re Application of George Farm Co., 233 Neb. 23, 443 N.W.2d 285 (1989).
Moreover, in reviewing a decision of the PSC, it is not the province of an appellate court to weigh or resolve conflicts in the evidence or the credibility of the witnesses; rather, an appellate court will sustain the decision of the PSC if there is evidence in the record to support its findings. In re Application of Kilthau, 236 Neb. 811, 464 N.W.2d 162 (1991); In re Application of Slack, 234 Neb. 704, 452 N.W.2d 538 (1990); In re Application of Overland Armored Exp., 229 Neb. 524, 428 N.W.2d 166 (1988). Of course, the evidence must be competent and relevant. See, Hoesly v. State, 243 Neb. 304, 498 N.W.2d 571 (1993); Geringer v. City of Omaha, 237 Neb. 928, 468 N.W.2d 372 (1991); Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991); Chicago & N.W. Ry. Co. v. City of Norfolk, 157 Neb. 594, 60 N.W.2d 662 (1953).
For purposes of reviewing an order of an administrative agency, competent evidence means evidence which tends to establish the fact in issue. Wagner v. City of Omaha, supra; Shepherd v. City of Omaha, 194 Neb. 813, 235 N.W.2d 873 (1975), overruled on other grounds, Caniglia v. City of Omaha, 210 Neb. 404, 315 N.W.2d 241 (1982). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb.Rev.Stat. § 27-401 (Reissue 1989); State v. Wood, 245 Neb. 63, 511 N.W.2d 90 (1994); State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993); Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).
Applications to obtain telephone service furnished in an adjacent exchange are governed by Neb.Rev.Stat. § 75-613 (Reissue 1990):
Upon the completion of the hearing on such an application, if a hearing is required, the [PSC] may grant the application, in whole or in part, if the evidence establishes all of the following:
(1) That such applicant or applicants are not receiving, and will not within a reasonable time receive, reasonably adequate exchange telephone service from the company furnishing such service in the exchange service area in which the applicant or applicants reside or operate. The fact that an applicant is required to pay toll charges for long-distance telephone calls to an exchange service area adjacent to the territory in which the applicant resides...
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