Wells Fargo Armored Service Corp. of Neb. v. Bankers Dispatch Corp.

• Decision Date: 08 January 1971
• Docket Number: No. 37518,37518
• Citation: 182 N.W.2d 648,186 Neb. 261
• Parties: , 87 P.U.R.3d 406 In the Matter of the Application of Wells Fargo Armored Service Corporation of Nebraska, Inc., Omaha, Nebraska. WELLS FARGO ARMORED SERVICE CORPORATION OF NEBRASKA, INC., Omaha, Nebraska, Appellee, v. BANKERS DISPATCH CORPORATION, Chicago, Illinois, Appellant.
• Court: Nebraska Supreme Court

Page 648

182 N.W.2d 648

186 Neb. 261, 87 P.U.R.3d 406

In the Matter of the Application of Wells Fargo Armored Service Corporation of Nebraska, Inc., Omaha, Nebraska. WELLS FARGO ARMORED SERVICE CORPORATION OF NEBRASKA, INC., Omaha, Nebraska, Appellee, v. BANKERS DISPATCH CORPORATION, Chicago, Illinois, Appellant.

No. 37518.

Supreme Court of Nebraska.

Jan. 8, 1971.

Syllabus by the Court

1. On appeal from the Nebraska State Railway Commission, judicial review is limited to a determination whether the commission acted within the scope of its authority and whether the order in question was reasonable and not arbitrarily made.

2. A contract carrier is one who furnishes transportation service to meet the special needs of the individual shipper or shippers.

3. Generally, under the law, the Nebraska State Railway Commission is required to weigh the special needs of shippers desiring the new contract carrier service against the adequacy of the existing common carrier service.

4. Section 75-311, R.S.Supp., 1969, requires a finding by the Nebraska State Railway Commission that the proposed operation of a contract carrier to the extent authorized by the permit would be consistent with the public interest.

5. The term 'consistent with the public interest,' as used in section 75-311, R.S.Supp., 1969, means that the proposed contract carrier service does not conflict with the legislative policy of the state in dealing with transportation by motor vehicles.

6. When an application is made for a common carrier certificate, a heavier burden is cast upon the applicant than in the case of a contract carrier.

7. An applicant for a common carrier certificate must meet the test that the proposed service is or will be required by the present or future public convenience and necessity, otherwise such application shall be denied.

8. In determining such public convenience and necessity, the deciding factors 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 the applicant in a specified operation without endangering or impairing the operations of existing carriers contrary to the public interest.

Acklie & Peterson, Lincoln, W. W. Wallin, Chicago, for appellant.

Gross, Welch, Vinardi, Kauffman, Schatz & Day, William A. Day, Jr., Joseph J. Vinardi, Harold W. Kauffman, Omaha, for appellee.

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

WHITE, Chief Justice.

This is an appeal by Bankers Dispatch Corporation, hereinafter referred to as B.D.C. from a Nebraska State Railway Commission order granting a contract carrier permit to Wells Fargo Armored Service.

Samardick of Grand Island-Hastings, Inc., filed an application with the Nebraska State Railway Commission on September 23, 1968, seeking authority to operate in Nebraska intrastate commerce as a contract carrier by motor vehicle, over irregular routes, transporting cash, letters, checks, and other commercial papers, data processing materials, and other documents and records related thereto. B.D.C. filed a protest to the granting of the application.

Subsequent to the filing of the application, Wells Fargo acquired the operating authority of Samardick. By stipulation of the parties, Wells Fargo was the applicant in the commission proceedings and is the appellee here. The commission granted the contract carrier permit to Wells Fargo and this appeal by B.D.C. followed.

On appeal from the Nebraska State Railway Commission, this court is usually only called upon to decide if the commission acted within the scope of its authority and whether the order in question was reasonable and not arbitrarily made. Poulson v. Hargleroad Van & Storage Co., 183 Neb. 201, 159 N.W.2d 302 (1968). It is this latter issue that is involved here.

The commission consistently treated Wells Fargo's application as one for a contract carrier permit. The application, as filed, sought such a permit. However, the commission need not be bound by the applicant's own definition of the proposed service. If it is in fact an application in the nature of a common carrier, the commission should treat it as such. Midwest Mail Service, Inc. v. Bankers Dispatch Corp., 174 Neb. 809, 119 N.W.2d 692 (1963).

A contract carrier has been generally defined by this court as 'one who furnishes transportation service to meet the special needs of the individual shipper or shippers. In other words the commission is required to weigh the special needs of shippers desiring the new contract carrier service against the adequacy of the existing common carrier service.' Hagen Truck Lines, Inc. v. Ross, 174 Neb. 646, 119 N.W.2d 76 (1973). If the service can be performed as well by common carriers, a need for a contract carrier has not been established.

A contract carrier permit application is governed by section 75-311, R.S.Supp., 1969: 'A permit shall be issued to any qualified applicant therefor, authorizing in whole or in part the operations covered by the application, if it appears after notice and hearing from the application or from any hearing held thereon that the applicant is fit, willing, and able properly to perform the service of a contract carrier by motor vehicle, and to conform to the provisions of sections 75-301 to 75-347 (322.01) and the lawful requirements, rules and regulations of the commission thereunder, and that the proposed operation, to the extent authorized by the permit, will be consistent with the public interest; otherwise, such application shall be denied.'

'Consistent with the public interest,' as used by the quoted section, means that the proposed contract carrier service does not conflict with the legislative policy of the state in dealing with transportation by motor vehicles. Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp., 183 Neb. 229, 159 N.W.2d 310 (1968). To be contrasted with this is the heavier burden put upon an applicant for a common carrier certificate. In that case, the applicant must meet the test of 'public convenience and necessity,' also set out in section 75-311, R.S.Supp., 1969: 'A certificate shall be issued to any qualified applicant therefor * * * if it is found * * * that the proposed service * * * is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.'

In determining such public convenience and necessity, the deciding factors 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.' Moritz v. Transcontinental Bus Lines, Inc., 153 Neb. 206, 43 N.W.2d 603 (1950).

The original application in this case stated that only the Omaha National Bank would be served in the operation. Wells Fargo revealed at the hearing that there were at least four more proposed contracting parties. In addition, Wells Fargo proposes to add as many contracts as it can by actively soliciting business. The vice president of Wells Fargo of Nebraska testified that his company intends to make contacts with 'all the potential clients' in order to provide service for them.

Wells Fargo had authority prior to the application in question to transport coin and currency in armored vehicles between all points in Nebraska. By the present application, Wells Fargo hopes to also carry shipments of letters, checks, and data processing material. B.D.C. presently serves all of the various correspondent banks used by Wells Fargo as supporting witnesses. B.D.C. already transports all the requested commodities for these banks, with the exception of coin and currency.

Thus, given Wells Fargo's admitted intention of active solicitation, the only real distinguishing factor between the service now rendered by B.D.C. and that which is to be performed under the contract carrier permit is that Wells Fargo could provide such service on a contract basis. The evidence does not support this as being sufficient to constitute a 'service to meet the special needs of the individual shipper or shippers.' Hagen Truck Lines, Inc. v. Ross, 174 Neb. 646, 119 N.W.2d 76 (1963).

The language in Midwest Mail Service, Inc. v. Bankers Dispatch Corp., 174 Neb. 809, 119 N.W.2d 692 (1963) is in point: 'The fact that the proposed service will be used by a limited class of persons or businesses is not a controlling factor. Many services rendered by common carriers are limited or specialized, depending upon the nature of the industry being served. It seems clear to us that applicant desires authority to transport the designated articles for the general needs of all shippers. These are factors indicating a common carrier service and not that of a contract carrier. Even though applicant purports to transport only a limited number of articles for a limited number of businesses who alone have occasion to transport them, the evidence indicates that applicant intends to hold itself out to perform transportation service for all shippers of articles named in the permit.'

We conclude, therefore, that the proposed service is that of a common carrier and, if such authority is to be granted, it must be shown that it is required by public convenience and necessity.

As mentioned earlier, one deciding...