Kassebaum v. Nebraska State Railway Commission

7 N.W.2d 464, 142 Neb. 645, 1943 Neb. LEXIS 4
CourtNebraska Supreme Court
DecidedJanuary 6, 1943
DocketNo. 31467
StatusPublished
Cited by7 cases

This text of 7 N.W.2d 464 (Kassebaum v. Nebraska State Railway Commission) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kassebaum v. Nebraska State Railway Commission, 7 N.W.2d 464, 142 Neb. 645, 1943 Neb. LEXIS 4 (Neb. 1943).

Opinion

Simmons, C. J.

Appellant Kassebaum holds a certificate of convenience and necessity as a common carrier by motor vehicle. Upon citation to show cause it was held by the state railway commission that his operations were in violation of the law [647]*647and his certificate. Kassebaum appeals. The appeal presents the question of the proper construction to be given to the certificate. We reverse the order of the Commission in part.

As used herein the term Commission means the Nebraska state railway commission.

For several years prior to 1937 the appellant Kassebaum was operating a commercial trucking business in the state of Nebraska. In 1937 the legislature enacted chapter 142, Laws 1937, now sections 75-222 to 75-238, Comp. St. Supp. 1941. Section 75-228, supra, provides: “Ninety days after the effective date of this Act it shall be unlawful for any common carrier * * * subject to the provisions of this Act to engage in any intrastate operations * * * unless there is in force with respect to such carrier a certificate of public convenience and necessity * * * : Provided, * * * if any such carrier * * * was in actual bona fide operation as a common carrier by motor vehicle on April 1, 1936, over the route or routes or within the territory for which application is made, * * * the Commission shall issue such certificate without requiring- further proof that public con-venience and necessity will be served by such operation * * * .” Pursuant to this provision of the act, on December 21, 1937, a certificate was issued to Kassebaum authorizing- him “to operate as a common carrier of property by motor vehicle upon the highways of Nebraska, and to render the service and over the route or routes or within the territory hereinafter authorized and to desist from any other operations * * * subject to the condition that applicant conforms to the provisions * * *(of the act) and the requirements, rules and regulations of the Commission.”

The certificate specifically provided as follows: “Service Authorized: Commodities generally, including live stock, but except those requiring special equipment other than refrigeration. Route or Territory Authorized: Irregular routes from within a 25-mile radius of Hebron, to and from Omaha and vicinity and Lincoln arid vicinity, occasionally to and from various points in the extreme western part of [648]*648the state, including. Scottsbluff, also occasionally to and from various points in the state of Nebraska on a statewide basis.”

On June 4, 1941, the commission cited Kassebaum to appear and show cause, if any, why his certificate should not be revoked, canceled, annulled or suspended for wilful failure to comply with the provisions of the act and the rules and regulations of the commission, and why he should not be required to confine his operations as set forth in his certificate. The citation recited the issuance of the certificate ; that it authorized “only operations as a common carrier over irregular routes,” that it correctly described Kassebaum’s actual operations as of April 1, 1936; it charged that Kassebaum was conducting operations not authorized by his certificate “in that he was operating as a common carrier by motor vehicle over a route between the fixed termini of Hebron and Lincoln, Nebraska, with a strong degree of regularity” from December 4, 1940, until May 17, 1941.

To this citation respondent answered to the effect that his operations were entirely within the law, and within the terms of his certificate.

On June 23, 1941, a hearing- was had before an examiner of the Commission. The evidence in many respects is indefinite and inconclusive. The evidence discloses however that beginning in the fall of 1940 Kassebaum’s business between Hebron and Lincoln increased and he operated a somewhat regular service between the above points on Mondays, Wednesdays and Fridays, and advertised such service. In November, 1940, a criminal complaint was filed in Thayer county, evidently charging a violation of the act, but the exact nature of the charge is not shown. Subsequent to that charge, Kassebaum discontinued his scheduled trips, but continued to make trips on call and to solicit business to complete a cargo. These trips continued to preponderate on Mondays, Wednesdays and Fridays, although he made a substantial number of trips on other days of each week. While not at all definite in the evi[649]*649dence, the examiner found that he followed generally highways 81 and 6 from Hebron to Lincoln and return.

Based on the examiner's report, the Commission found that the essential elements of a regular route service are that (1) there must be fixed termini, (2) a fixity of highways traveled, (3) a regularity of service rendered, and ('4) a predetermined plan of the carrier to conduct such operations; that each of the foregoing- elements were found in the instant case; that the services being performed by Kassebaum were those of a regular route operator; and that such services were not authorized by his certificate. He was ordered to cease and desist from performing regular route service and to limit his operations to those authorized in his certificate. The Commission denied a rehearing. Kassebaum appeals.

The case requires a construction of the act, a construction of Kassebaum’s certificate and a determination of whether or not his operations as detailed in the evidence and as found by the Commission are authorized by his certificate.

The act recites a policy “to regulate transportation by motor carriers * * * in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest; promote adequate, economical and efficient service * * * develop and preserve a highway transportation system properly adapted to the needs of the commerce of Nebraska.” Section 75-222, supra. It places upon the Commission the duty to regulate common carriers by motor vehicle “and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service.” Section 75-225, supra. The Commission has authority to attach to the exercise of the privileges granted by the certificate “such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require.” Section 75-228 (d), supra. The Commission may suspend, change or revoke a certificate in whole or in part “for wil[650]*650ful failure to comply” with the act or “with any lawful order, rule or regulation” of the Commission or “with any term, condition or limitation” of the certificate. Section 75-231, supra. Wilful violation of any terms of the act is made a misdemeanor punishable by fine. Section 75-237, supra.

Kassebaum’s certificate was issued under the so-called “grandfather” clause of section 75-228 (a), supra. To secure it he was required to show the operations that he was conducting on April 1, 1936, and subsequent thereto, and was not required to furnish further proof of public convenience and necessity. That is the only distinction made in' the act between those who hold a “grandfather” certificate and those who hold a certificate issued upon a showing of public convenience and necessity. The certificate determined his operations prior to "the critical dates of the act. The Commission cannot, in this proceeding, go behind the certificate and show that Kassebaum’s operations prior to that period were different than those set out in his certificate.

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Bluebook (online)
7 N.W.2d 464, 142 Neb. 645, 1943 Neb. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kassebaum-v-nebraska-state-railway-commission-neb-1943.