O. E. Poulson, Inc., Application of, 36707

• Decision Date: 07 June 1968
• Docket Number: No. 36707,36707
• Citation: 183 Neb. 201,159 N.W.2d 302
• Parties: , 74 P.U.R.3d 502 Application of O. E. POULSON, INC., etc. WHEELER TRANSPORT SERVICE, INC., et al., Appellees, v. O. E. POULSON, INC., Elm Creek, Nebraska, Appellant, Impleaded with Wynne Transport Service, Inc., et al., Appellees.
• Court: Nebraska Supreme Court

Page 302

159 N.W.2d 302

183 Neb. 201, 74 P.U.R.3d 502

Application of O. E. POULSON, INC., etc WHEELER TRANSPORT SERVICE, INC., et al., Appellees, v. O. E. POULSON, INC., Elm Creek, Nebraska, Appellant Impleaded with Wynne Transport Service, Inc., et al., Appellees.

No. 36707.

Supreme Court of Nebraska.

June 7, 1968.

Syllabus by the Court

1. Ordinarily the only questions to be determined on appeal from the Nebraska State Railway Commission are whether the commission acted within the scope of its authority and whether the order complained of is reasonable and not arbitrarily made.

2. In determining the issue of public convenience and necessity, in cases where new or extended operating rights are sought, 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 operation without endangering or impairing the operations of existing carriers contrary to the public interest.

3. The purpose of the Nebraska Motor Carrier Act was regulation for the public interest. Its purpose was not to stifle legitimate competition but to foster it. Its purpose was not to create monopolies in the transportation industry, but to eliminate discrimination, undue preferences or advantages, and unfair or destructive competitive practices. Legitimate competition is a normal attribute of our free enterprise system. It must be permitted to exist and the law contemplates that it shall.

Nelson, Harding, Acklie, Leonard & Tate, Lincoln, for appellant.

R. E. Powell, James E. Ryan, Lincoln, John Wenstrand, Omaha, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

SPENCER, Justice.

This is an appeal by O. E. Poulson, Inc., from an order of the Nebraska State Railway Commission denying an application for an extended certificate of public convenience and necessity. On February 24, 1966, O. E. Poulson, Inc., filed its application requesting authority to transport acids and chemicals in bulk in tank or hopper-type vehicles between all points in Nebraska. On the same date, identical applications were filed by Wynne Transport Service, Inc., and Paul Abler, doing business as Central Transport Company, and on March 17, 1966, by D & R Bulk Carriers, Inc. Thereafter, on March 21, 1966, applications were filed by Ruan Transport Corporation, Peake, Inc., and Wheeler Transport Service, Inc., for authority to transport acids and chemicals (except those which are derived from petroleum or petroleum products) in bulk, in tank or hopper-type vehicles. Ward Transport, Inc., filed an identical application on April 4, 1966. On April 12, 1966, Bridge Brothers filed an application identical with that of the four companies first-above mentioned. All nine applications were combined for hearing purposes although separate orders were subsequently entered with reference to each application. Appearances were made by Hargleroad Van & Storage Co. and Herman Bros., Inc., protesting all applications. For convenience, the parties interested will hereafter be referred to as Poulson, Wynne, Abler, D & R, Ruan, Peake, Wheeler, Ward, Bridge Brothers, Hargleroad, and Herman Bros. Ruan, Peake, Wheeler, and Ward also protested with reference to the applications of all the other parties interested.

During the course of the hearing, all applicants amended their applications to ask authority to transport 'Fertilizers and fertilizer materials (with or without pesticides), feed ingredients, liquid feed supplements, anhydrous ammonia and urea, between points in Nebraska.' Then the applications of Poulson, Wynne, Abler, and D & R were further amended by the insertion of the word 'chemical' immediately ahead of the words 'feed ingredients' so that the applications would read 'chemical feed ingredients.' A lengthy hearing was had on the nine applications and the protests in regard thereto. At the conclusion of the hearing, all applications were granted, excepting that of Poulson which was rejected. Poulson appeals and protestants appear as appellees herein.

The record discloses that Bridge Brothers, prior to this hearing, held authority to transport fertilizers and anhydrous ammonia between all points in Nebraska. The seven other successful applicants had authority to transport petroleum products, but such authority was limited as to the territories which could be so serviced in the cases of Wheeler, Abler, Wynne, D & R, and Ruan. Wheeler and Ruan also had authority to transport liquid fertilizers between all points in Nebraska. All of the carriers authorized to transport petroleum products, except those with liquid fertilizer authority, had made it a practice to transport anhydrous ammonia on the theory that it was a petroleum product, but there being considerable doubt on this point, it became apparent during the course of the hearing that there was a need of a determination by the commission of the authority to transport anhydrous ammonia as a petroleum product. The evidence in fact discloses that anhydrous ammonia is generally derived as a product of natural gas but is sometimes produced from coal and other sources and that it cannot correctly be considered a petroleum product. This was a matter that apparently had not been previously investigated by the commission and it had acquiesced in the transportation of anhydrous ammonia by those carriers holding authority to transport petroleum products. Poulson did not have authority to transport either petroleum products or fertilizers. It is apparent that, generally speaking, all applicants sought an extension of their respective authorities to permit the handling of the materials mentioned in the amended applications. Those applicants which held authority to transport petroleum products wanted that authority broadened and clarified so that they could transport anhydrous ammonia which would be included in the term fertilizer and fertilizer materials. All applicants except one with general fertilizer transporting authority, including two with authority to transport liquid fertilizers, desired their authorities expanded to include all fertilizers and fertilizer materials. Generally speaking, all applicants desired a further expansion of their respective authorities to include feed ingredients and liquid feed supplements. All requested authority to transport the products in question on a statewide basis between all Nebraska points. All nine of the applicants held interstate authority to transport the materials involved in this proceeding.

Hargleroad, one of the protestants, is in the process of selling its business to the other principal protestant, Herman Bros., and the evidence indicates that the tractors and trailers or motorized equipment held by Hargleroad are not being transferred to Herman Bros. It appears that Hargleroad is probably no longer a real party at interest in this action and that it is possible that the Hargleroad equipment may be removed from service in Nebraska.

There is some evidence in the record by protestants that they are capable of handling all of the Nebraska intrastate business involving the products mentioned in the amended applications, but all parties conceded that there has been an extraordinary and phenomenal growth in the fertilizer business in Nebraska during recent years; that it increased about 25 percent in each of the past 2 or 3 years; and that it would continue such a rapid rate of development. Several new plants have been constructed in the area in the past 2 years and more are in the process of construction with old plants being rapidly enlarged. For example, a large storage facility is in the process of construction in Blair, Nebraska, on the Missouri River, with fertilizer products to be barged in on the river and thence to be distributed in Nebraska.

Representatives of shippers testified. These included Standard Chemical which handles feed products, Phillips Petroleum Company, Cominco American, Incorporated, Fel-Tex, Incorporated, Consumers Cooperative Association, and Gulf Oil Company which handle fertilizers and fertilizer materials. These witnesses testified in detail to the rapid expansion of the industry and contrary to the evidence given by the protestants, they stated that during busy seasons they were frequently unable to get their products moved by the existing carriers authorized to transport such products. They further indicated that they expected this difficulty to continue; that it was frequently detrimental to their business, as fertilizers constitute a product that is seasonal and must be made available promptly during the seasonal demand therefor; and that when unable to move their products, it resulted in a loss of business to their respective firms. Four of these shippers specifically supported the granting of all applications, including that of Poulson. The Phillips Petroleum Company representative recommended all except the Poulson application but refused to give any reason whatsoever for failing to endorse this application. The sixth, Gulf Oil Company, did not specifically endorse any particular application but stated that it was primarily interested in seeing to it that sufficient transportation facilities were available for its use and that it certainly desired a continuance of the authority to handle its products insofar as the applicants were concerned with whom it had been doing business. It had not previously done business with Poulson, and possibly, inferentially, the testimony of this witness could be construed as not endorsing the application of Poulson, but on the other hand he was not objecting thereto.

It will be noted that in its original action, the commission granted authority to Poulson, Wynne, Abler, and D & R to transport anhydrous ammonia between all Nebraska points and withheld decision on the...