In re R.R. Comm'rs

Decision Date31 January 1884
Citation15 Neb. 679,50 N.W. 276
PartiesIN RE RAILROAD COMMISSIONERS.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

The legislature has no power, under the constitution, to create railroad commissioners. The supervision of railroads by a commission would be proper, but the power must be conferred on executive offices already existing.

This was a matter coming before the court by the following document:

“Whereas, the constitutionality of the railway commissioner system has been questioned, and there are differences of opinion among the members of this legislature as to the construction of section 26 of article 5 of the constitution of the state of Nebraska, which provides that ‘no other executive state office shall be continued or created:’ Therefore, be it resolved, that the members of the supreme court of this state be and are hereby respectfully requested to answer the following questions:

First. Would railway commissioners be state executive officers, or would the office of railway commissioner of the state be a state executive office, if created by the legislature?

Second. Would such an office, if created by the legislature, come within the inhibition of the constitution?

Third. Would a law regulating the management of railroads in Nebraska under the commissioner system be obnoxious to any provision or provisions of the constitution of this state?

Fourth. In your opinion, could such a railroad commissioner law be framed that would be capable of enforcement?

You are most respectfully requested to answer the above and foregoing questions in full at your earliest possible convenience.

I certify the above to be a correct copy of the resolution adopted by the house of representatives on January 22, 1883.

BRAD. D. SLAUGHTER, Chief Clerk.

Lincoln, Jan. 23, '83.”

OPINION OF THE JUDGES.

To the Honorable the House of Representatives of Nebraska:

We have the honor to acknowledge the receipt of a copy of a resolution adopted by your honorable body on the 22d day of the present month, whereby the judges of the supreme court were requested to answer the important questions hereinafter stated. While we cheerfully comply with that request, we desire, in the first place, to say that courts or judicial officers, in this state at least, are but seldom called upon to decide or pass an opinion upon important legal or constitutional questions without first having the benefit of argument by counsel, who, stimulated by considerations of professional pride and the pecuniary interests of their clients, have usually exhausted the libraries of learning in search for reasons and precedents to sustain their respective sides of the question and the theories upon which they may be sustained, and even then it not unfrequently happens that a conclusion reached under these favorable circumstances may be reversed or materially modified after being brought to the test of experience and that free and enlightened discussion which the opinions of judges as well as the acts of legislators must undergo in this age and country. We therefore enter with diffidence upon the examination of these important questions, which, so far as we know, are now presented for the first time under our constitution, and in which examination we are without the aid of argument or discussion.

Taking up the questions in the order in which they are presented by the resolution, the first is as follows: First. Would railway commissioners be state executive officers, or would the office of railway commissioner of the state be a state executive office, if created by the legislature?” As railway commissioners are at present unknown to the constitution and laws of this state, we take it for granted that the house, in the wording of the resolution, had reference to those officers as known to the laws of some of our sister states. In looking into the statute of the state of Iowa, for instance, we find a law making it the duty of the governor, by and with the advice and consent of the executive council, to appoint three competent persons, (one of whom shall be a civil engineer,) who shall constitute a board of railroad commissioners, etc. The act in its several sections provides salaries for these commissioners, to be paid out of the state treasury; that they...

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