Young, Application of

• Decision Date: 03 March 1961
• Docket Number: No. 34823,34823
• Citation: 171 Neb. 784,107 N.W.2d 752
• Parties: Application of Harold E. YOUNG, etc. Harold E. YOUNG, dba Young's Service, Appellee, v. MORGAN DRIVE AWAY, INC., et al., Appellants, Impleaded with Marjorie J. Spidell, Appellee.
• Court: Nebraska Supreme Court

Page 752

107 N.W.2d 752

171 Neb. 784

Application of Harold E. YOUNG, etc Harold E. YOUNG, dba Young's Service, Appellee, v. MORGAN DRIVE AWAY, INC., et al., Appellants Impleaded with Marjorie J. Spidell, Appellee.

No. 34823.

Supreme Court of Nebraska.

March 3, 1961.

Syllabus by the Court

1. An order of the Nebraska State Railway Commission, making ultimate findings of fact in the language of the statutes, is not void because of the failure of the commission to make basic findings of fact in the order upon which the ultimate facts rest.

2. In determining the issue of public convenience and necessity, 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 declared policy of section 75-222, R.R.S.1943, is, in part, to regulate transportation in the public interest, and to promote efficient service without undue preferences or advantages, and unfair or destructive competitive practices. The declared policy does not condemn competition. It does condemn unfair or destructive competitive practices.

4. The primary object of the regulation of public utilities by the Nebraska State Railway Commission is not to establish a monopoly or to guarantee the security of investment in public service corporations, but, first and at all times, to serve the interests of the public.

5. Our holding in In re Application of Canada, 154 Neb. 256, 47 N.W.2d 507, modified to the extent and in the manner set forth in our opinion.

Story, Pilcher, Howard & Hickman, Omaha, Nelson, Harding & Acklie, Lincoln, for appellants.

Theodore L. Richling, Clayton H. Shrout, Arthur L. Foley, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, SPENCER, and BOSLAUGH, JJ.

WENKE, Justice.

On May 28, 1959, Harold E. Young, doing business at 2663 St. Marys Avenue in Omaha, Nebraska, under the name of Young's Service, filed an application with the Nebraska State Railway Commission seeking to obtain authority to operate as a motor carrier for hire in intrastate commerce upon the highways of Nebraska in the moving of house trailers and mobile homes over irregular routes throughout the state, such hauling to originate or terminate in Omaha or within a radius of 250 miles thereof.

Protests to the granting of this authority were filed with the commission by Marjorie J. Spidell of Omaha, Nebraska; Cecil R. Schelby, doing business as Mike's Trailer Sales of Lincoln, Nebraska; National Trailer Convoy, Inc., of Tulsa, Oklahoma; and Morgan Drive Away, Inc., of Elkhart, Indiana. Each of these protestants either had, or had made application for, authority to operate in the same field applied for by Young.

A hearing was had on the application before an examiner appointed by the commission for that purpose. The examiner filed a report with the commission on October 13, 1959, recommending that the application be granted. Exceptions were filed thereto by each of the protestants. These the commission overruled, finding:

'2. That applicant is fit, willing and able properly to perform the service proposed and to conform to the provisions of Sections 75-222 to 75-250, R.R.S.1943, as amended, and the requirements, rules and regulations of the Commission thereunder.

'3. That the proposed service is or will be required by the present or future public convenience and necessity to the following extent:

SERVICE AUTHORIZED:

House trailers and mobile homes.

ROUTE OR TERRITORY AUTHORIZED:

Between points and places within a 250 mile radius of Omaha, and between points and places within said radial area on the one hand, and on the other hand, all points and places in Nebraska, over irregular routes.

'4. That a certificate of public convenience and necessity should be issued to Harold E. Young, dba Young's Service, Omaha, Nebraska in Application No. M-11068, authorizing operations as described in paragraph No. 3 above.' It therefore ordered '* * * that a certificate of public convenience and necessity be, and the same is hereby, issued to Harold E. Young, dba Young's Service, Omaha, Nebraska in Application No. M-11068, authorizing operations as described in paragraph No. 3 of the findings above, * * *.'

Motions for rehearing were filed by Morgan Drive Away, Inc., and National Trailer Convoy, Inc. These motions for rehearing were overruled by the commission and thereafter Morgan Drive Away, Inc., National Trailer Convoy, Inc., and Cecil R. Schelby took this appeal therefrom.

Appellants contend the order of the commission is devoid of requisite basic findings of fact and is therefore unlawful and void. We have already set forth the commission's findings. They respond generally to the requirements of section 75-230, R.R.S.1943, which provides, insofar as here material, that: '* * * a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing and able properly to perform the service proposed, and to conform to the provisions of sections 75-222 to 75-250 and the requirements, rules and regulations of the State Railway Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; * * *.'

In Ferguson Trucking Co., Inc. v. Rogers Truck Line, 164 Neb. 85, 81 N.W.2d 915, 916, wherein the commission's findings were also substantially in the language of the statute, the same issue was raised. We therein stated we could find no statute that places such a requirement on the commission and, in the absence thereof, declined to place such a requirement on it, holding: 'An order of the Nebraska State Railway Commission, making ultimate findings of fact in the language of the statutes, is not void because of the failure of the commission to make basic findings of fact in the order upon which the ultimate facts rest.' While in Skeedee Independent Tel. Co. of St. Edward v. Farm Bureau, 166 Neb. 49, 87 N.W.2d 715, and Application of Oakdale Telephone Co. (Oakdale Tel. Co. v. Wilgocki), 171 Neb. 425, 106 N.W.2d 486, we have been critical of the commission's conduct in connection with its handling of the matter before it in these cases, however, neither of these cases either overrules or modifies our holding in Ferguson Trucking Co., Inc. v. Rogers Truck Line, supra.

But appellants call our attention to section 84-915, R.S.Supp.1959, which was enacted by the Legislature subsequent to our holding in Ferguson Trucking Co., Inc. v. Rogers Truck Line, supra. That section, insofar as here material, provides: 'Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact.' (Emphasis ours.) It will be observed the language quoted, particularly that emphasized, authorizes the commission to do exactly what it did and is not contrary to our holding in Ferguson Trucking Co., Inc. v. Rogers Truck Line, supra. We find appellants' contention in this regard to be without merit.

'The burden is on the 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 sections 75-222 to 75-250, R.R.S.1943, and the requirements, rules, and regulations of the commission promulgated thereunder; and that the proposed service is or will be required by the present or future public convenience and necessity.' Preisendorf Transp., Inc. v. Herman Bros., Inc., 169 Neb. 693, 100 N.W.2d 865, 868.

In view of appellee having this burden it is appellants' contention that appellee has not adduced sufficient evidence to meet the standards this court has set up where new or extended original authority is being sought. The rule referred to is as follows: "In determining the issue of public convenience and necessity, 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." Preisendorf Transp., Inc. v. Herman Bros., Inc., supra. We have applied this rule to situations wherein authority was being sought to operate a regular bus line within a city, to operate a regular bus line between cities, to operate regular freight lines, and to operate irregular freight operations. See, Furstenberg v. Omaha & C. B. St. Ry. Co., 132 Neb. 562, 272 N.W. 756; In re Application of Effenberger, 150 Neb. 13, 33 N.W.2d 296; In re Application of Moritz, 153 Neb. 206, 43 N.W.2d 603; In re Application of Canada, 154 Neb. 256, 47 N.W.2d 507; Edgar v. Wheeler Transport Service, Inc., 157...