Summary
In Edgar v. Wheeler Transport Service, Inc., 157 Neb. 1, 58 N.W.2d 496, we held: "The burden is on an applicant for a certificate of convenience and necessity to show that the operation under the certificate is and will be required by the present or future convenience and necessity."
Summary of this case from Christensen v. Highway Motor FreightOpinion
No. 33243.
Filed May 15, 1953.
1. Public Service Commissions: Carriers. As a condition precedent to the insurance of a certificate of convenience and necessity to a motor carrier by the Nebraska State Railway Commission, the commission must find that the service is or will be required by present or future public convenience and necessity. 2. ___: ___. The burden is on an applicant for a certificate of convenience and necessity to show that the operation under the certificate is and will be required by the present or future public convenience and necessity.
APPEAL from the Nebraska State Railway Commission. Reversed.
Swenson, Viren Turner, Neal H. Hilmes, and R. E. Powell, for appellants.
Ginsburg Ginsburg, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
On June 19, 1951, Edgar Oil Company by Park L. Edgar, owner, of Ashland, Nebraska, filed an application with the Nebraska State Railway Commission for permission to operate as a motor carrier for hire in intrastate commerce upon the highways of the State of Nebraska and for a certificate of convenience and necessity to so operate. By the application permission was sought to operate motor vehicles for the purpose of transporting refined petroleum products from all refining and distributing points in Nebraska to Ashland, Wilber, DeWitt, Unadilla, and Lincoln, Nebraska. The application was for the purpose of transporting property for the general public for hire.
It was set forth in the application that applicant's proposed service would be in direct competition with the following named motor carriers for hire: Transit, Inc., Herman Oil Transport Co., Pulec Transport, and Wheeler Transportation Service, Inc.
Wheeler Transport Service, Inc., and Charles D. Doher on August 8, 1951, filed a formal protest to the application and asked that it be dismissed.
On December 13, 1951, an examiner for the Nebraska State Railway Commission filed a report in which he recommended that the application be approved in part and to that extent a certificate of convenience and necessity be granted. The details of that report are not of importance herein.
On December 19, 1951, Wheeler Transport Service, Inc., and Charles D. Doher filed exceptions to the examiner's report. On December 22, 1951, Transit, Inc., Mabel C. Herman, doing business as Herman Oil Transport Company, and Ralph Darling, doing business as Darling Transport Service, also filed exceptions to the report.
The Nebraska State Railway Commission thereafter conducted a hearing on the application, the protest, and the exceptions to the examiner's report, and on February 1, 1952, rendered its opinion, its findings, and its order.
By this order the applicant was granted a certificate of convenience and necessity to transport refined petroleum products in bulk in tank vehicles from the Great Lakes Pipe Line distribution point in Omaha, Nebraska, and points within a 10-mile radius from such point as point of origin to DeWitt, Wilber, and Ashland, Nebraska, as points of destination with return movements of rejected shipments authorized. Permission to move over irregular routes was authorized.
From this order the protesting parties and those excepting to the examiner's report have appealed. For the purposes of this opinion the applicant will be referred to as appellee and the other parties as appellants.
By their assignments of error the appellants substantially say that the order granting the certificate of convenience and necessity is arbitrary, unreasonable, and contrary to law; and that it is not sustained by evidence that public convenience and necessity requires the issuance of a certificate of convenience and necessity for the performance of this service.
Factually, there is little if any controversy involved herein. For some considerable period of time appellee under proper and legal authority was an interstate carrier of the products which he seeks by his application to carry in intrastate commerce. The point of origin of his interstate shipments was in the State of Kansas. The shipments were received there from the Skelly Oil Company for delivery to the named points in Nebraska. The Skelly Oil Company outlet has been moved to Omaha. It therefore has become necessary, if the appellee is to receive these products from the Skelly Oil Company for transportation to the named points in Nebraska, for him to have an intrastate certificate of convenience and necessity from the Nebraska State Railway Commission.
The evidence discloses that these named points in Nebraska are served by other legally authorized motor carriers and if appellee should be refused the permission sought that fact would not deprive the areas of any needed or necessary service. Distributors at these locations desire but do not require the service of the appellee.
It appears that if this certificate of convenience is not issued to appellee he will be deprived of substantial and profitable operations which were formerly carried on under his interstate authority. If it is issued it reasonably appears that he would retain the operation and since the proposed certificate does not limit or restrict operations except as to points of origin, destination, and products to be handled, possibly he would in competition with other carriers increase them.
Under these facts the convenience that would be served by the certificate would be that of the appellee and that of the distributors at the destination points. The only necessity served would be that of the appellee.
Harsh as the rule may appear and in fact be, the Legislature has not seen fit to allow the Nebraska State Railway Commission to recognize this character and quality of convenience and necessity in determining whether or not permission shall be extended for engagement in the business of a common carrier in the State of Nebraska. It has permitted recognition of only public convenience and necessity. This is especially true when other carriers are already in the field.
This court said in In re Application of Canada, 154 Neb. 256, 47 N.W.2d 507: "A provision of the statute is that as a condition precedent to the issuance of a certificate, the commission shall find that the service to be authorized is or will be required by present or future public convenience and necessity."
In the paragraph from which the foregoing quotation was taken, the following appears: "The question of the adequacy of service of existing carriers is implicit in the issue of whether or not convenience and necessity demand the service of an additional carrier in the field. Obviously the existence of an adequate and satisfactory service by motor carriers already in the area is complete negation of a public need and demand for added service by another carrier." See, also, In re Application of Moritz, 153 Neb. 206, 43 N.W.2d 603.
It was also said in In re Application of Canada, supra: "The burden was on appellee to show that the operation he proposed was and would be required by the present or future public convenience and necessity." See, also, In re Application of Richling, 154 Neb. 108, 47 N.W.2d 413; In re Application of Moritz, supra.
Instead of the appellee herein sustaining the burden imposed upon him, his evidence indicates quite clearly that the service which his application contemplates can be well performed by other carriers operating in the area.
It must be said therefore that the order of the commission in granting the certificate of convenience and necessity to the appellee was unreasonable, arbitrary, and contrary to law, and it should be and is reversed.
REVERSED.
WENKE, J., dissents.
YEAGER, J. (In response to dissent)
As the writer of the majority opinion in this case I claim the right to respond to the dissenting opinion. I respond to it for the reason that, as I believe, it contains fallacies which if not pointed out would lead readers to a mistaken understanding of the true purport of the majority opinion in its exposition of the law as it is, which law neither the State Railway Commission nor this court may with propriety disregard or nullify.
I have no quarrel with the philosophical phases, as such, of the dissent, but I am stating only a truism recognizable and recognized by all profound students of American law and American government when I say that where in the legal examination of a controversy law and philosophy conflict, the law and not philosophy should prevail. This is a country whose government is of laws.
The provision of law which is basic in the creation and functioning of the State Railway Commission is Article IV, section 20, of the Constitution. It is, to the extent of importance in this case, as follows:
"* * * The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision."
The dissent contains the following statement: "These powers are exclusive and self-executing except as the Legislature may implement them by statute." I find no real fault with this statement. I think however that the following carries more comprehensively the meaning of the provision: These powers are designed to be and remain self-executing unless and until the Legislature by action destroys them.
The Legislature did pursuant to the power granted to it by the provision itself destroy to the extent applicable to the case at bar this self-executing power. It enacted section 75-230, R.R.S. 1943, as follows:
"Subject to section 75-237, 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; otherwise such application shall be denied."
A portion but not all of this provision has been quoted in the dissent. The last clause of it is not quoted. I think that this clause must be accorded much significance in the determination in this case. It is in specific terms a mandate to the State Railway Commission to deny an application for a certificate unless the facts disclose that the proposed service is or will be required by the present or future public convenience and necessity.
In any case where there is a factual dispute as to whether or not the issuance of a certificate will respond to the present or future public convenience and necessity the finding of the State Railway Commission and the issuance of a certificate should not be disturbed by this court unless it is abundantly clear that it is unreasonable and arbitrary or contrary to law.
There is no such factual dispute in this case. The record conclusively demonstrates that the certificate here does not respond to any requirement of present or future public convenience and necessity. It responds only to the private convenience of the appellee herein. The record makes it clear that the appellee had certain customers at the locations in question which he desired to continue to serve and also that the customers desired a continuance of his service, but the evidence discloses affirmatively that in this connection no public convenience and necessity is involved.
This being true it appears to me that the unavoidable conclusion is that the issuance of the certificate by the State Railway Commission was violative of the mandate of the statute. It therefore becomes necessary, regardless of what may be said or thought of the harshness of the ruling, for this court to reverse the action of the State Railway Commission.
It is a prerogative of this court when such a question is presented to inquire into the power of the Legislature to act but it may not properly inquire into its wisdom.
The power of the Legislature in this instance is not brought into question. If therefore this legislation is harsh and unwise, correction and alleviation can properly come only from the Legislature.