Mogis v. Lyman-Richey Sand & Gravel Corporation
| Decision Date | 15 May 1950 |
| Docket Number | Civ. No. 126-49. |
| Citation | 90 F. Supp. 251 |
| Parties | MOGIS v. LYMAN-RICHEY SAND & GRAVEL CORPORATION. |
| Court | U.S. District Court — District of Nebraska |
Swenson, Viren & Turner, (Robert W. Turner) Omaha, Neb., for plaintiff.
Kennedy, Holland DeLacy & Svoboda, (Yale Holland) Omaha, Neb., for defendant.
This is an action to recover certain undercharges arising by reason of the fact that the plaintiff was not paid rates consonant with those promulgated by the Nebraska State Railway Commission. The Commission derives its authority to regulate such rates from the following legislative provision: "The State Railway Commission is vested with power and authority to, and it shall be its duty to make investigations, hold hearings, and prescribe reasonable rates and charges for the transportation of passengers and property by common carrier, which rates and charges shall become effective not later than sixty days after such prescription." Sec. 75-241, R.S.1943.
When the Commission has fixed the rates it sends a copy of the rate schedule to the carrier and the carrier is required to publish its own rates. Sec. 75-303, R.S.1943. These rates may be published jointly by the carriers if they so desire. The rates in question were published in the Official Motor Vehicle Tariff, No. 3, as amended, which was issued by the State Railway Commission May 22, 1945. And it is ably contended by counsel for the plaintiff that these rates then became law by virtue of the peculiar nature of the Nebraska Constitutional and statutory provisions in respect thereto.
The sole objection which the defendant makes concerning the validity of these rates is that the Commission in issuing the rates has not complied with the Nebraska Rules for Administrative Agencies, which, among other things, provide:
* * *" Sec. 84-902, R.S.1949 Supp.
"No rule required under this act to be filed with the Secretary of State shall be valid as against any person until the certified copy of the rule shall have been so filed; * * *." Sec. 84-906, R.S.1949 Supp.
The palpable issue is whether "rates" are "rules" within the meaning of the above legislative enactment. It has been stipulated by the parties that the rates in question have not been filed with the Secretary of State and consequently if "rates" are "rules" then the petition should be dismissed at this point because the defective rates could not be a valid basis for the claim.
A "rule" has been defined for the purposes of these sections as follows: "(2) `rule' means the written statement of any rule, regulation, standard or policy of general application issued by an agency, including the amendment or repeal thereof, and designed to implement, interpret or make specific the law enforced or administered by it, or governing its organization or procedure, but not including regulations concerning the internal management of the agency not affecting private rights or interests; Provided, that * * * every rule which shall prescribe a penalty shall be presumed to have general applicability or to affect private rights and interests." Sec. 84-901, R.S.1949 Supp.
We are here faced with the most difficult of all statutory construction problems. The court is asked to put meaning into this interpretative provision of the legislative enactment, or more precisely, the court is asked to define the definition.
The fundamental rule of construction is that the legislative intent should be ascertained, if possible. Hansen v. Dakota County, 135 Neb. 582, 283 N.W. 217. But this is not an easy task and a thorough search through the Nebraska Legislative Journals seems to indicate that the legislature never considered the problem with which we are now faced. Laws 1945, c. 255, sec. 1, p. 795, L.B. 138, may be traced in the 1945 Nebraska Legislative Journal at pages 108, 110, 130, 274, 306, 316, 356, 401, 478, 517, 524, 533, 542 and 556; Laws 1947, c. 350, sec. 1, p. 1097, L.B. 399, may be traced in the 1947 Nebraska Legislative Journal at pages 278, 320, 564, 796, 1332, 1391, 1409, 1563, 1614, 1673, 1685, 1709 and 1790. Some information can be gathered from the Report of the Committee on Administrative Agencies of the Nebraska State Bar Association, 22 Neb.L.R., No. 4, p. 29, 1943. This committee made a report on the situation sought to be...
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Mogis v. Lyman-Richey Sand & Gravel Corp.
...question was submitted to the district court upon argument and briefs. That court, in a memorandum opinion, Mogis v. Lyman-Richey Sand & Gravel Corporation, D.C.Neb., 90 F.Supp. 251 and accompanying order, found that rate tariffs prescribed by the Commission were to be included within the m......
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Schmieding v. American Farmers Mutual Insurance Co.
...v. Nu-Enamel Corporation, 8 Cir., 117 F.2d 488; Mogis v. Lyman-Richey Sand & Gravel Corporation, 8 Cir., 189 F.2d 130, affirming, D.C., 90 F.Supp. 251, rehearing denied 8 Cir., 190 F.2d 202, certiorari denied 342 U.S. 877, 72 S.Ct. 168, 96 L.Ed. 659; Mattson v. Central Electric & Gas Co., 8......
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City of Scottsbluff v. United Telephone Co. of the West
...and filed with the Secretary of State, which admittedly was not done. In that connection, plaintiff relies upon Mogis v. Lyman-Richey Sand & Gravel Corp., D.C., 90 F.Supp. 251, which was affirmed in 8 Cir., 189 F.2d 130 by the United States Court of Appeals. Those opinions involved a contro......
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Mogis v. Lyman-Richey Sand & Gravel Corp.
...Judges, and DELEHANT, District Judge. PER CURIAM. On May 18, 1951, this Court, 189 F.2d 130, affirmed the judgment of the District Court, 90 F.Supp. 251. June 2, 1951, appellant filed a petition for rehearing. Included in the grounds urged in this petition are that "this court erred in over......
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Neb. Const. art. IV § IV-20 Public Service Commission; Membership; Terms; Powers
...65 F.2d 557 (8th Cir. 1933). Rates are within rule-making power of State Railway Commission. Mogis v. Lyman-Richey Sand and Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950). 3. Miscellaneous Railway commissioner was eligible for office of State Treasurer. Swanson v. Sorensen, 181 Neb. 312, 148 N......
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Neb. Const. art. IV § IV-20 Public Service Commission; Membership; Terms; Powers
...65 F.2d 557 (8th Cir. 1933). Rates are within rule-making power of State Railway Commission. Mogis v. Lyman-Richey Sand and Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950). 3. Miscellaneous Railway commissioner was eligible for office of State Treasurer. Swanson v. Sorensen, 181 Neb. 312, 148 N......
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Neb. Const. art. IV § IV-20 Public Service Commission; Membership; Terms; Powers
...65 F.2d 557 (8th Cir. 1933). Rates are within rule-making power of State Railway Commission. Mogis v. Lyman-Richey Sand and Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950). 3. Miscellaneous Railway commissioner was eligible for office of State Treasurer. Swanson v. Sorensen, 181 Neb. 312, 148 N......
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§ IV-20. Public Service Commission; Membership; Terms; Powers
...65 F.2d 557 (8th Cir. 1933). Rates are within rule-making power of State Railway Commission. Mogis v. Lyman-Richey Sand and Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950). 3. Miscellaneous Railway commissioner was eligible for office of State Treasurer. Swanson v. Sorensen, 181 Neb. 312, 148 N......