Neylon v. Nebraska State Railway Commission

Simmons, C. J.,

concurring.

I concur with the conclusion of the court. I would place the decision on the question submitted by the parties as to whether the order of December 26, 1947, was in effect a certificate of convenience and necessity or a procedural order' within the control of the commission. I would hold it to be merely a procedural order within the control of the commission.

By its terms section 75-238, R. S. 1943, is applicable only where a certificate of convenience and necessity has been issued. See Gregg Cartage & Storage Co. v. United States, 316 U. S. 74, 62 S. Ct. 932, 86 L. Ed. 1283. The verb “issue” means to deliver and to send out officially. 48 C. J. S., Issue, p. 777.

The term “certificate” when used in the act means a certificate of public convenience and necessity issued under the act to common carriers by motor vehicle. § 75-223, R. S. 1943.

Section 75-230, R. S. 1943, provides for the issuance of a certificate if the applicant is found to possess certain qualifications and the proposed service “to the extent to be authorized by the certificate” is or will be *595required by the present or future public convenience and necessity.

Section 75-231, R. S. 1943, provides: “Any certificate issued under section 75-230 shall specify the service to be rendered, the routes, the fixed termini, if any, and the intermediate and off-route points, if any, and in case of operations not over specified routes or between fixed termini, the territory within which such carrier is authorized to operate. There shall, at the time of issuance, and from time to time thereafter, be attached 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, including terms, conditions and limitations as to the extension of the route or routes of the carrier, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the commission.”

It is patent that the order of December 26, 1947, does not meet the requirements of the statute, and that in and of itself it cannot be construed to be a certificate of convenience and necessity. Section 75-239, R. S. 1943, requires that Neylon comply with requirements of the commission as to insurance and that “No certificate * * * shall be issued” until that was done. Section 75-226, R. S. Supp., 1947, provides for an annual fee for each motor vehicle operated, payable on or before January 1 of each year after certificate shall have been issued.

Neylon contends that he has complied with these requirements. However, compliance was after December 26, 1947.

In Smith Bros. Revocation of Certificate, 33 M. C. C. 465, the Interstate Commerce Commission had before it and considered section 212 (a) of the federal act, which is comparable to our section 75-238, R. S. 1943. The Interstate Commerce Commission there held that all decisions and orders made before the certificate of convenience and necessity was duly and regularly issued *596and became effective were essentially procedural in character and might be set aside, modified, or vacated by the commission. This decision was quoted with approval in Manhattan Coach Lines, Inc. v. Adirondack Transit Lines, Inc., 42 M. C. C. 123, and Lincoln Tunnel Applications, 44 M. C. C. 665. The holding as to this element of the case was approved in United States v. Seatrain Lines, Inc., 329 U. S. 424, 67 S. Ct. 435, 91 L. Ed. 396. We quoted at length from the Smith case in the case of In re Application of Hergott, 145 Neb. 100, 15 N. W. 2d 418. See, also, Interstate Motor Transit Co. v. Public Utilities Commission, 119 Ohio. St. 264, 163 N. E. 713; Pennsylvania R. R. Co. v. Public Utilities Commission, 123 Ohio St. 203, 174 N. E. 737; Penn-Ohio Coach Lines Co. v. Public Utilities Commission, 139 Ohio St. 262, 39 N. E. 2d 745; Reynolds v. Alexandria Motor Bus Line, Inc., 141 Va. 213, 126 S. E. 201; Northern Pac. Ry. Co. v. Board of Railroad Com’rs., 13 F. Supp. 529.