Thompson v. Heineman

CourtSupreme Court of Nebraska
Citation857 N.W.2d 731
Docket NumberNo. S–14–158,S–14–158
PartiesRandy Thompson et al., appellees and cross-appellants, v. Dave Heineman, in his official capacity as Governor of the State of Nebraska, et al., appellants and cross-appellees.
Decision Date09 January 2015

857 N.W.2d 731

Randy Thompson et al., appellees and cross-appellants
v.
Dave Heineman, in his official capacity as Governor of the State of Nebraska, et al., appellants and cross-appellees.

No. S–14–158

Supreme Court of Nebraska.

Filed January 9, 2015


Jon Bruning, Attorney General, Katherine J. Spohn, Ryan S. Post, Lincoln, and Blake E. Johnson for appellants.

David A. Domina, Brian E. Jorde, and Megan N. Mikolajczyk, of Domina Law Group, P.C., L.L.O., Omaha, for appellees.

Richard Klingler, Kathleen Mueller, and Lauren C. Freeman, of Sidley Austin, L.L.P., and James G. Powers and Patrick D. Pepper, of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for amicus curiae TransCanada Keystone Pipeline, LP.

Heavican, C.J., Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ., and Riedmann, Judge.

Syllabus by the Court

1. Judgments: Appeal and Error.An appellate court independently reviews questions of law decided by a lower court.

2. Judgments: Jurisdiction.A jurisdictional question which does not involve a factual dispute presents a question of law.

3. Constitutional Law: Statutes.The constitutionality of a statute presents a question of law.

4. Standing: Jurisdiction: Parties.Standing is a jurisdictional component of a party's case. Only a party that has standing—a legal or equitable right, title, or interest in the subject matter of the controversy—may invoke the jurisdiction of a court or tribunal.

5. Standing: Proof.Common-law standing usually requires a litigant to demonstrate an injury in fact that is actual or imminent.

6. Taxation: Standing.Taxpayer standing is an exception to the injury-in-fact requirement for standing.

7. Actions: Taxation: Injunction.A resident taxpayer, without showing any interest or injury peculiar to itself, may bring an action to enjoin the illegal expenditure of public funds raised for governmental purposes.

8. Taxation: Standing: Public Purpose.As a limited exception to the injury-in-fact requirement for standing, taxpayers may raise a matter of great public concern.

9. Mandamus: Public Purpose: Words and Phrases.The “great public concern” exception is another name for the “public interest” exception in early mandamus cases to enforce a public right.

10. Actions: Taxation: Standing: Public Purpose.In taxpayer actions raising a matter of great public concern,

857 N.W.2d 737

there is no requirement that the taxpayer show the alleged unlawful act would otherwise go unchallenged because no other potential party is better suited to bring the action.

11. Constitutional Law: Statutes: Presumptions.A court presumes that statutes are constitutional and will not strike down a statute unless its unconstitutionality is clearly established.

12. Constitutional Law: Administrative Law: Public Service Commission.The Public Service Commission is not a statutorily created state agency. It is an independent regulatory body for common carriers created by Neb. Const. art. IV, § 20.

13. Public Service Commission.The Public Service Commission has independent legislative, judicial, and executive or administrative powers over common carriers, which powers are plenary and self-executing. Absent specific legislation, the commission's enumerated powers over common carriers are absolute and unqualified.

14. Constitutional Law: Legislature: Public Service Commission.In any field where the Legislature has not acted, the Nebraska Constitution authorizes the Public Service Commission to exercise its plenary powers over common carriers.

15. Constitutional Law: Legislature: Public Service Commission.Under Neb. Const. art. IV, § 20, the Legislature can restrict the Public Service Commission's plenary powers only through specific legislation.

16. Constitutional Law: Legislature: Public Service Commission: Jurisdiction: Words and Phrases.Under Neb. Const. art. IV, § 20, the term “specific legislation” means specific restrictions. It does not include general legislation to divest the Public Service Commission of its jurisdiction and transfer its powers to another governmental entity or official besides the Legislature.

17. Constitutional Law: Legislature: Public Service Commission: Jurisdiction.Under Neb. Const. art. IV, § 20, the Legislature can divest the Public Service Commission of jurisdiction over a class of common carriers by passing specific legislation that occupies a regulatory field, thereby preempting the commission's control.

18. Constitutional Law: Legislature: Public Service Commission: Jurisdiction.Under Neb. Const. art. IV, § 20, if the Legislature passes specific legislation to divest the Public Service Commission of jurisdiction in a regulatory field, the Legislature cannot abandon control over the common carriers in that field. Regulatory control over common carriers must reside either in the commission or in the Legislature.

19. Constitutional Law: Legislature: Public Service Commission.Unless the Legislature enacts legislation to specifically restrict the Public Service Commission's authority and retains control over that class of common carriers, it cannot constitutionally deprive the commission of its regulatory powers.

20. Constitutional Law: Legislature: Public Service Commission.The Public Service Commission's constitutional authority to regulate “common carriers” is limited to the common-law meaning of that term unless the Legislature has authorized the commission to exercise control over carriers that are outside of that meaning.

21. Words and Phrases.A carrier refers to an individual or organization that contracts to transport passengers or goods for a fee. The common law recognizes only two types of carriers: common carriers and private carriers.

22. Contracts: Words and Phrases.A private carrier is one that, without being

857 N.W.2d 738

in the business of transporting for others or holding itself out to the public as willing to do so, undertakes only by special agreement to transport property, either gratuitously or for a consideration.

23. Public Purpose: Words and Phrases.Any person, corporation, or association holding itself out to the public as offering its services to all persons similarly situated and performing as its public vocation the services of transporting passengers, freight, messages, or commodities for a consideration or hire, is a common carrier in the particular spheres of such employment.

24. Public Purpose: Words and Phrases.A carrier is a common carrier if its vocation is of a public nature, although limited to the transportation of certain classes or kinds of freight, and it may be of service to a limited few who by their peculiar situation or business may have occasion to employ it. Transporting commodities for others is a vocation of a public nature even if the service is not available to the public at large.

25. Oil and Gas: Words and Phrases.An oil pipeline carrier is a common carrier if it holds itself out as willing to transport oil products for a consideration to all oil producers in the area where it offers its transportation services.

26. Constitutional Law: Statutes: Proof.A plaintiff can succeed in a facial challenge only by establishing that no set of circumstances exists under which the act would be valid, i.e., that the law is unconstitutional in all of its applications.

27. Oil and Gas: Legislature: Intent.Neb. Rev. Stat. § 75-501 (Reissue 2009) does not define the whole field of pipeline common carriers. Its historical context shows that the Legislature intended only to ensure that intrastate carriers are regulated.

28. Constitutional Law: Courts: Public Service Commission.A court liberally construes the constitutional provision creating the Public Service Commission and delineating its powers.

29. Constitutional Law: Statutes.A canon of statutory construction must yield to constitutional requirements governing the same subject matter.

30. Public Utilities: Rates.The public nature of a corporate utility's operations and the public franchise that authorizes its operations justify government regulation of its rates.

31. Eminent Domain.The reason common carriers can exercise the right of eminent domain lies in their quasi-public vocation of transporting passengers or commodities for others.

32. Constitutional Law: Eminent Domain: Taxation: Public Purpose.A citizen's property may not...

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11 cases
  • Transcanada Keystone Pipeline, LP v. Dunavan (In re Application No. Op-0003)
    • United States
    • Supreme Court of Nebraska
    • August 23, 2019
    ...MAR is in the public interest. The assignments of error are without merit. AFFIRMED .--------Notes:1 Thompson v. Heineman , 289 Neb. 798, 857 N.W.2d 731 (2015).2 See Neb. Rev. Stat. § 57-1101 (Reissue 2010).3 See, Neb. Rev. Stat. § 32-509 (Reissue 2016) ; Neb. Rev. Stat. § 75-101(1) (Reissu......
  • Estermann v. Bose
    • United States
    • Supreme Court of Nebraska
    • April 7, 2017
    ...except through the sovereign powers of taxation and eminent domain, both of which must be for a public purpose. Thompson v. Heineman , 289 Neb. 798, 857 N.W.2d 731 (2015). See, also, Burlington Northern Santa Fe Ry. Co. v. Chaulk , 262 Neb. 235, 631 N.W.2d 131 (2001) ; Burger v. City of Bea......
  • Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Rds.
    • United States
    • Supreme Court of Nebraska
    • June 25, 2021
    ...v. State , 298 Neb. 445, 905 N.W.2d 38 (2017).22 See, Estermann v. Bose , 296 Neb. 228, 892 N.W.2d 857 (2017) ; Thompson v. Heineman , 289 Neb. 798, 857 N.W.2d 731 (2015).23 See Knick, supra note 20.24 See Edwards v. Douglas County , 308 Neb. 259, 953 N.W.2d 744 (2021).25 Brief for appellee......
  • Sanitary & Improvement Dist. No. 67 of Sarpy Cnty. v. Neb. Dep't of Roads
    • United States
    • Supreme Court of Nebraska
    • June 25, 2021
    ...298 Neb. 445, 905 N.W.2d 38 (2017). 22. See, Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017); Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015). 23. See Knick, supra note 20. 24. See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021). 25. Brief for appellee NDOT a......
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