Nebraska Power Co. v. Omaha Ice & Cold Storage, Inc.

23 N.W.2d 312, 147 Neb. 324, 1946 Neb. LEXIS 74
CourtNebraska Supreme Court
DecidedMay 31, 1946
DocketNo. 32116
StatusPublished
Cited by3 cases

This text of 23 N.W.2d 312 (Nebraska Power Co. v. Omaha Ice & Cold Storage, Inc.) 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
Nebraska Power Co. v. Omaha Ice & Cold Storage, Inc., 23 N.W.2d 312, 147 Neb. 324, 1946 Neb. LEXIS 74 (Neb. 1946).

Opinion

Messmore, J.

This is an appeal by the Omaha Ice & Coal Storage, Inc., from an order of the Nebraska State Railway Commission after hearing had on application No. A-16266 of the Nebraska Power Company of Omaha, Nebraska, wherein the commission granted it authority to issue and sell its serial notes in the principal amount of $7,000,000, to be dated as date of issuance thereof which would not be later than [325]*325September 1, 1945, and to issue and pledge as collateral security for its said notes, its bonds in the principal amount of $7,000,000, the purpose being to retire its outstanding preferred stock. The commission overruled the objections of the Omaha Ice & Cold Storage, Inc., which challenged the jurisdiction of the commission over the subject matter contained in the application. From this order of the commission the Omaha Ice & Cold Storage, Inc., appealed.

For convenience, the Omaha Ice & Cold Storage, Inc., will hereinafter be referred to as appellant, the Nebraska Power Company as appellee, and the State Railway Commission as the commission.

The case is before this court upon the appellee’s motion to dismiss the appeal. The motion, in substance, is as follows : (1) The appellant has no such interest in the subject matter involved as to legally warrant or justify an appeal by it; (2) the appellant is not aggrieved and will not be affected in any way by any order entered either affirming or reversing the order of the commission with reference to the subject matter of the objections filed by it; (3) the objections of the appellant raise solely the question of the jurisdiction of the commission over the subject matter of the application filed by the appellee, and a determination of such question, insofar as the appellant is concerned, amounts only to an abstract question of law in nowise affecting substantial rights of the appellant; and (4) the issues, as indicated by the transcript, involve only the question of jurisdiction of the commission, and a determination of the same will not affect property or other rights of either the appellant or the appellee.

The objections filed by the appellant to the application of the appellee before the commission, insofar as need be considered here, object to the jurisdiction of the commission over the subject matter, alleging that appellant is a large consumer of electric energy in the city of Omaha, and a customer of the appellee.

The appellant, in its brief, states the question before this court to be, whether or not a customer of the appellee [326]*326has such an interest, as will permit an appeal under section 75-405, R. S. 1943.

The appellant sets forth, to show the liberality in making complaint before the State Railway Commission, sections 75-401, R. S. 1943, and 75-411, R. S. 1943, which sections, in the main, have to do with the fixing of rates and discrimination in rates by railroads and other common carriers, notice to be given, hearings thereon and pleadings to be filed, none of which are involved in this appeal.

The appellant cites the case of Lincoln Commercial Club v. Missouri P. Ry. Co., 103 Neb. 504, 172 N. W. 687. This case was brought by the Lincoln Commercial Club as representative of a class of interested persons, and dealt exclusively with discrimination in rates. The court held: “Where unjust discrimination arises as between individuals or localities, by reason of the absorbing of switching charges in certain instances and not in others under like circumstances and conditions, the carrier may be required to remove the discrimination by a change in tariff schedule eliminating the charge.”

It is apparent from an analysis of sections 75-401 and 75-411, R. S. 1943, that insofar as the fixing and determination of rates by railroads and other common carriers is concerned, the right to complain, as provided for in such statutory provisions, is broad enough to include a civic club organized for commercial purposes, as in the case of the Lincoln Commercial Club v. Missouri P. Ry. Co., supra. However, the question of the right to appeal in the cited case, was not raised in this court. It is therefore apparent, a clear distinction exists between the applicability of the foregoing statutory provisions,,to the case of the Lincoln Commercial Club v. Missouri P. Ry. Co., supra, and the subject matter before this court in this appeal wherein no questions of rates are involved.

We now set forth, in substance, section 75-405, R. S. 1943: “If any * * * person or persons affected thereby, shall be dissatisfied with the decision of the State Railway Commission affirming, revising, annulling or modifying any [327]*327rate or rates complained of in the original schedule, or any subsequent schedule, which may be the subject of investigation, or with the decision of the commission with reference to any rate, classification, rule, charge, order, act, or regulation made or adopted by them upon which there has been a hearing before the commission, except as otherwise expressly provided for herein, such dissatisfied * * * person or persons affected may institute proceedings in the Supreme Court of Nebraska to reverse, vacate or modify the order complained of ’; * * * .”

The appellant cites Poppleton v. Moores, 62 Neb. 851, 88 N. W. 128; 67 Neb. 388, 93 N. W. 747, in support of its contention. The action was brought by a water user and taxpayer to enjoin the mayor and city council of Omaha from passing an ordinance postponing the city’s rights to purchase, at an appraised value, the plant of a waterworks company. The right of a citizen to maintain such a suit was among the things objected to. The appellant quotes from the first opinion in the above cited case the following: “The allegations as to the manner in which plaintiff will be affected by it seem amply to disclose such an interest as a court of equity should protect against an unauthorized action of municipal authorities. It involves at least a possible, if not a certain, maintenance of water rates and an embarrassment of one remedy if rates are oppressive.”

It will readily be discerned, by an analysis of the cited case, that the proposed action to be taken by the municipality, which was unlawful, would affect the substantial rights of this taxpayer and all taxpayers who were water users of the city.

It is interesting to note that in the second opinion in the cited case, this court held: “Wholly unauthorized action under color of office by municipal authorities, which injuriously affects the interest of a taxpayer and water-user of the city, and for which he has no direct remedy at law, warrants an injunction to protect him.” Obviously the case is not in point with the subject matter under consideration in this appeal.

[328]*328We note the following language in section 75-405, R. S. 1943: “If any * * * person or persons affected thereby, shall be dissatisfied with the decision of the State Railway Commission * * * , such dissatisfied * * * person or persons affected may institute proceedings in the Supreme Court of Nebraska to reverse, vacate or modify the order complained of; * * *

The word “affected” is not a word of art, but a word of ordinary English. It is capable of a very large meaning. See 1 Stroud’s Judicial Dictionary, (2d ed.) p. 50.

“Affect” means “to act upon; influence; change; enlarge or abridge; often used in the sense of acting injuriously upon persons and things.” Black’s Law Dictionary, (3ded.) p. 72.

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Bluebook (online)
23 N.W.2d 312, 147 Neb. 324, 1946 Neb. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nebraska-power-co-v-omaha-ice-cold-storage-inc-neb-1946.