Transit Homes, Inc., Application of, 35062

• Decision Date: 02 March 1962
• Docket Number: No. 35062,35062
• Citation: 113 N.W.2d 638,173 Neb. 391
• Court: Nebraska Supreme Court
• Parties: Application of TRANSIT HOMES, INC., et al. TRANSIT HOMES, INC., Transferee, and Duane A. Nikont, d/b/a D & D Trailer Towing, Gering, Nebraska, Transferor, Appellants-Cross-Appellees, v. NATIONAL TRAILER CONVOY, INC., Tulsa, Oklahoma, and Morgan Drive-Away, Inc., Elkhart, Indiana, Appellees-Cross-Appellants.

Page 638

113 N.W.2d 638

173 Neb. 391

Application of TRANSIT HOMES, INC., et al.

TRANSIT HOMES, INC., Transferee, and Duane A. Nikont, d/b/a D & D Trailer Towing, Gering, Nebraska, Transferor, Appellants-Cross-Appellees, v. NATIONAL TRAILER CONVOY, INC., Tulsa, Oklahoma, and Morgan Drive-Away, Inc., Elkhart, Indiana, Appellees-Cross-Appellants.

No. 35062.

Supreme Court of Nebraska.

March 2, 1962.

Syllabus by the Court

1. The burden is on an applicant for a certificate of public convenience and necessity to show that he is fit, willing, and able to perform the service he proposes; that he will conform to the provisions of the statute and the requirements, rules, and regulations properly promulgated by the Nebraska State Railway Commission; and that the proposed service is or will be required by the present or future public convenience and necessity.

2. Where a certificate of public convenience and necessity is not dormant it may be transferred on approval of the Nebraska State Railway Commission under reasonable rules and regulations to be prescribed by it, if the transfer will be consistent with the public interest, if it will not unduly restrict competition, and if the transferee is fit, willing, and able to perform the service proposed.

3. The statute governing the transfer of certificates of public convenience and necessity is permissive in terms and not mandatory, and action of the Nebraska State Railway Commission in refusing to transfer will be sustained unless it appears that the refusal was unreasonable and arbitrary.

4. The term public interest which appears in the Motor Carrier Act means that which has a direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision for the best use of transportation facilities.

5. Although the transfer of a certificate of public convenience and necessity is permissive and not mandatory, a refusal of transfer will be regarded as unreasonable and arbitrary if under the facts a valid basis for denial is not disclosed.

Holtorf & Hansen, Gering, Barney, Carter & Buchholz, Lincoln, for appellants.

Donald E. Leonard, Nelson, Harding & Acklie, Lincoln, Pilcher, Howard & Hickman, Omaha, for appellees.

Heard before MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

YEAGER, Justice.

To the extent necessary to state here, this proceeding was commenced by the filing by Transit Homes, Inc., a corporation, which will be referred to as Transit, of an application on May 16, 1960, with the Nebraska State Railway Commission for authority to operate as a motor carrier of property for hire in intrastate commerce as successor in interest under a transfer of a certificate held by Duane Alden Nikont of Gering, Nebraska. The certificate was one of public convenience and necessity for the towing or hauling by truck of trailers or trailer homes with one authorized terminal, which was Gering, Nebraska. The certificate authorized transportation of house trailers over irregular routes throughout the state.

To this application separate protests by two parties were filed. One was Morgan Drive Away, Inc., which will be referred to as Morgan, which was engaged under a certificate in the same kind of activity in the State of Nebraska as Nikont. It was also operating under interstate authority. By its protest it alleged that it had a direct interest in the application of Transit, and specifically alleged that the transfer of the certificate would not be consistent with the public interest and that approval would unduly restrict competition.

By the other protest National Trailer Convoy, Inc., which will be referred to as National, alleged that it operates over irregular routes under an intrastate certificate of public convenience and necessity issued by the Nebraska State Railway Commission which are in part in the area of the Nikont operation. It also had interstate authority. It is therein declared that the territory is already adequately served and this will be a new and competitive service for which no need exists, and if there is additional need National is entitled to provide and afford that service. Further it is declared that the granting of the application will seriously impair the ability of National to conduct operations under its certificate and to maintain the quality and quantity of service being rendered and performed in the area.

A hearing was had before an examiner for the Nebraska State Railway Commission, which will be referred to as the commission, at which evidence bearing on the questions involved was adduced. This evidence together with the findings and recommendations of the examiner were filed with the commission.

Without stating in detail the findings and recommendations of the examiner it is stated here that he recommended that the application of Transit be granted.

To the recommendations of the examiner the objectors filed exceptions. The exceptions of National are eight in number. A summary of the first four is that the report is contrary to the evidence and law. The fifth is that it is arbitrary, unreasonable, and contrary to the evidence. The sixth is that it is contrary to the public interest and fails to consider sound economic conditions in the motor carrier industry. The seventh does not differ materially from the sixth, and the eighth is that there was refusal to consider evidence of dormancy and unfitness.

The exceptions of Morgan are 11 in number, but in their entirety they do not depart materially from the exceptions of National.

Thereafter, according to recital, the commission conducted a hearing and examined the evidence and the report of the examiner. On this basis it rendered an opinion with findings and an order in disposition of the controversy.

The findings are as follows:

'1. The exceptions to the Examiner's Report should be sustained and the application should be denied.

'2. The proposed Transfer would not be consistent with the public interest.

'3. Applicant is fit, willing and able properly to perform the service proposed.

'4. The certificate involved is not dormant but approval of the transfer would result in a new or different service or operation as to the territorial scope than that which the Commission intended when it granted application No. M-11102.'

The order is as follows:

'IT IS THEREFORE ORDERED By the Nebraska State Railway Commission Application No. M-11177 of Transit Homes, Inc., Anderson, South Carolina be, and the same is hereby, denied.'

It is from these findings and this order that Transit and Nikont have appealed. Morgan and National cross- appealed from the portion of the findings relating to fitness and dormancy. As grounds for reversal the appellants' brief contains three assignments of error. The substance of the first is that the order denied the application for transfer of the certificate notwithstanding the evidence disclosed that full performance of every essential of transfer had been complied with by the transferor and the transferee. The second, in true substance, points to no particular error committed by the commission, but it directs attention to findings which were altogether favorable to the appellants. The third is that the commission was in error in finding that the approval of the transfer would result in a new or different service or operation as to territorial scope than that which the commission intended when it granted application No. M-11102, or the application which was the basis of the certificate of Nikont.

The first of the findings in and of itself requires no separate consideration herein. It is merely an overall conclusion upon the other findings. The third requires no extended discussion. This one is favorable to Transit. It is a finding that Transit is fit, willing, and able to perform the service proposed. The propriety of the refusal of the commission to approve the transfer depends upon whether or not there was a factual and legal basis for the second and fourth findings.

There is no substantial dispute as to the legal principles which must be regarded as controlling in situations such as this. One of these is that the burden is on an applicant for a certificate of public convenience and necessity to show that he is fit, willing, and able to perform the service he proposes; that he will conform to the provisions of the statute and the requirements, rules, and regulations properly promulgated by...