State v. Fremont, E. & M. V.R. Co.

• Decision Date: 10 November 1887
• Citation: 35 N.W. 118,22 Neb. 313
• Parties: STATE OF NEBRASKA, EX REL. BOARD OF TRANSPORTATION, v. THE FREMONT, ELKHORN & MISSOURI VALLEY R. R. COMPANY
• Court: Nebraska Supreme Court

35 N.W. 118

22 Neb. 313

STATE OF NEBRASKA, EX REL. BOARD OF TRANSPORTATION, v. THE FREMONT, ELKHORN & MISSOURI VALLEY R. R. COMPANY

Supreme Court of Nebraska

November 10, 1887

ORIGINAL application for mandamus. The case is stated in the opinion.

Demurrer overruled, and peremptory writ issued.

O. P Mason, for relator.

The fact that the relators, by the terms of the statute, might make the application to the district court of the county or district where the road was operated, does not take away or interfere with the jurisdiction of this court, and the statute could not take away the jurisdiction of this court. The object of a mandamus is not to supersede legal remedies but rather to supply a lack of them. Two pre-requisites must exist to warrant a court in granting this remedy. First, It must appear that the relator has a clear legal right to the performance of the particular act or duty at the hands of the respondent; and Second, That the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty it is sought to coerce. People v. Supervisors of Greene, 12 Barbour, 217. Commonwealth v. Rosseter, 2 Binn., 360. Tarver v. Commissioner's Court, 17 Ala. 527. King v. Water Works Co., 6 Ad. and E., 355, per Coleridge, J.

The test to be applied in determining upon the right to relief by mandamus is to inquire whether the party aggrieved has a clear legal right, and whether he has any other adequate legal remedy, since the writ only belongs to those who have legal rights to enforce, and who find themselves without an appropriate legal remedy. People v. Thompson, 25 Barb., 73. And in this sense it may be regarded as a dernier resort, to be used when the law affords no other adequate means of relief. People v. Head, 25 Ill. 325. And whenever the conditions above noticed co-exist, the right to the aid of a mandamus may be regarded as to that extent ex debito justitioe. People v. Hilliard, 29 Ill. 418. It follows as a debt of justice, as a legal right. 3 Blackstone Com., 48. In this case the relators show not only a clear legal right to have the particular thing in question done, but also the right to have it done by the persons against whom the writ is sought. People v. Mayor of Chicago, 51 Ill. 28.

William Leese, Attorney General, for relator, cited the following authorities: Railroad Commission v. Natchez, Jackson & Col. R. R. 62 Miss. 646. Id. v. Yazoo & Miss. Valley R. R., Id., 607. Id. v. Farmers' Loan & Trust Co., 116 U.S. 307. Id. v. Illinois Central R. R. Co., Id., 347. Id. v. New Orleans & N. E. R. R., Id., 352. Munn v. Illinois, 94 U.S. 113. Peik v. Chicago & N. W. R. R., Id., 164. C., B. & Q. R. R. Co. v. Iowa Id., 155. Chicago, Mil. & St. Paul v. Ackley, Id., 179. Winona & St. Peter R. R. Co. v. Blake, Id., 180. Constitution of Nebraska, Sections 4 and 7, Art. II. State, ex rel. Mattoon, v. R. V. R. R. Co., 18 Neb. 512.

G. M. Lambertson appeared on behalf of Board of Trade and Freight Bureau of city of Lincoln, made argument, but filed no brief.

John B. Hawley (T. M. Marquett also appearing), for respondent on power of board, cited: Thatcher v. Fitchburg R. R. Co., 1 Interstate Com. Rep., 357. In re Railway Conductors, Id., 20. Chicago, etc., R. R. Co. v. Iowa 94 U.S. 161. On remedy: State v. School District, 8 Neb. 94. State v. Omaha, 14 Id., 267. State v. Eberhardt, Id., 203. High Ex. Leg. Rem., Sec. 5.

OPINION

MAXWELL, CH. J.

On the 24th day of September, 1887, the board of transportation of this state served notice upon the respondent, requiring it to reduce its freight charges 33 1/3 per cent on all its lines within the state of Nebraska, on or before October 1st, 1887, a schedule of the charges to be made as reduced for freight on said lines of road within the state being furnished to the respondent. The respondent neglected to comply with the order of the board, and on the 4th day of October, 1887, the board, through the attorney general of the state, applied for an alternative writ of mandamus to compel the respondent to comply with said order. The writ was returnable on the 5th of that month, when the respondent, by its attorney, appeared and prayed for additional time in which to plead to the writ, which time was granted. The respondent demurred to the complaint, and also to the alternative writ, and the case was set for hearing on the 17th day of October, 1887. On that date the attorney for the respondent not appearing, and the attorney general being absent at Washington on business pertaining to his office, the case was passed until his return. On his return, the case was set for hearing on the 31st day of October, 1887. At that date the attorney for the respondent appeared and filed a statement of an alleged compromise with the board of transportation of the state, except the attorney general, and also a resolution of said board, except said attorney general, asking the court to continue the case until the January term. This the attorney general resists, and insists that the case shall proceed, in order that the authority of the board over the subject-matter may be determined. The first question presented, therefore, is the authority of the attorney general to proceed with the prosecution of the case against the protest of a majority of the board of transportation.

Section 1a of article V., chapter 83 of the Compiled Statutes, 1887, provides that, "The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested, or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state, and prosecute and defend in any court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party or interested." The attorney general is thus the law officer of the state, and intrusted by law with the management and control of all cases in which the state is a party or interested. The majority of the state board of transportation, therefore, cannot control his action in the premises, and the motion to continue the cause must be overruled.

2d. Upon the overruling of the motion for continuance, the attorney for the respondent asked leave to withdraw the demurrer, and for time in which to prepare and file an answer. This, however, cannot be permitted. The respondent denies the authority of the state board to regulate and control the rates of freight upon its lines of railway. The question of power is fully raised by the demurrer, and should be decided before entering upon the consideration of questions of fact. It is important, too, that if such power should be found to exist, that the question be determined, so that parties aggrieved may apply to the board for relief. The motion for leave to withdraw the demurrer and file an answer is therefore overruled. If, however, the court shall decide that the board of transportation has the power to regulate rates as contended for in the petition and alternative writ, the demurrer will be overruled, and upon proper application the defendant will have leave to answer.

3d. It is a matter of the public history of the state that for a number of years prior to the 31st day of March, 1887, it was generally claimed that some or all the railroads of the state had granted secret rebates to favorite shippers over their lines; that the effect of such rebates was to charge a party not thus favored a larger sum for the same service than was charged to the favorite shippers; that equal facilities, in many cases, were not furnished to all who desired to ship either goods, grain, or stock, and business, as far as possible, was thrown into the hands of favorite parties. It was also claimed that certain prominent competing points in the state which had paid large sums as donations to secure competing lines, had actually been discriminated against by the increase in rates, and that charges generally throughout the state were much higher than those of other states having the same amount of business. Other wrongs were claimed which need not be noticed here. To correct these wrongs, the legislature at its last session passed "An act to regulate railroads, prevent unjust discrimination, provide for a board of transportation, and define its duties, and repeal articles 5 and 8 of chapter 72 entitled 'Railroads,' of the Revised Statutes, and all acts and parts of acts in conflict therewith"--Compiled Statutes of 1887, pp. 563-570. The first section of the act provides that it shall apply to any common carrier or carriers engaged in the transportation of passengers or property by railroad under a common control, management, or arrangement for continuous carriage or shipment from any point in the state of Nebraska to any other point in said state, and requires that all charges made for any service rendered or to be rendered in the transportation of passengers or property shall be reasonable and just, and prohibits unjust and unreasonable charges, and declares them to be unlawful. The second section declares that no common carrier subject to the provisions of the act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater compensation for any service rendered or to be rendered in the transportation of passengers or property than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions. The third section declares it to be unlawful for any such common carrier to...