Southern Pac. Co. v. Bartine

• Decision Date: 03 March 1909
• Citation: 170 F. 725
• Parties: SOUTHERN PAC. CO. v. BARTINE et al.
• Court: U.S. District Court — District of Nevada

170 F. 725

SOUTHERN PAC. CO. v. BARTINE et al.

United States Circuit Court, D. Nevada.

March 3, 1909

March 22, 1865 (St. 1865, p. 427, c. 146),, the Legislature of the state of Nevada passed an act entitled 'An act to provide for the incorporation of railroad companies, and the management of the affairs thereof, and other matters relating thereto. ' The first 16 sections of the act deal with the formation and organization of railroad companies and the powers, rights, and duties of directors and stockholders. Sections 17 to 39 deal with the corporate powers, including the right of eminent domain and the attendant procedure. The corporations are expressly empowered in section 17 'to regulate the time and manner in which passengers and property shall be transported, and the tolls and compensation to be paid therefor, within the limits prescribed by law. ' The consolidation of railroad companies is authorized by section 40. Sections 43 and 44 provide for certain filings with the Secretary of State and for the making of reports. Sections 40 to 50 go into the details of regulation, providing for fences, and for liability for stock injured or killed requiring the ringing of a bell under penalty, prescribing requirements as to passengers, and the receipt and checking of their baggage, and, in respect to the running of trains their time, their accommodations, and fixing upon the company the obligation to receive, transport, and discharge passengers and property at, from and to points on their line on payment of fares or freight; also providing for the payment of damages in case of failure to receive and transport property at the

appointed times and places, and relieving the corporation from liability to passengers injured in violation of the printed regulations of the company, posted in a conspicuous place; and giving conductors authority to eject passengers who refuse to pay fare. Section 50 requires certain trainmen to wear a particular kind of badge. Section 51 prescribes the maximum rates and charges for passenger and freight traffic including the specification of a minimum for any freight shipment for any distance. The section is in terms as follows:

'It shall be unlawful for any such railroad company to charge more than ten cents per mile for each passenger, and twenty cents per mile for each ton of freight transported on its road; and for every transgression of such limitation the company shall be liable to the party suffering thereby treble the entire amount of the fare or freight so charged to such party; provided, that in no case shall the company be required to receive less than thirty-five cents for any one lot of freight for any distance.'

Section 52 provides a penalty for intoxication of certain employes and sections 53 to 57 provide for the completion of the road within a certain time, require the use of a certain class of iron for tracks, and fix penalties in respect to the properties of the corporations, and the operation and management of the same. Section 58 extends the act to certain street railways.

The original act contained no clause repealing conflicting statutes, but in 1871, by way of amendment to section 57 of this act, two subsequently adopted amendatory acts, one approved March 9, 1866 (St. 1866, p. 251, c. 109), and the other February 16, 1869 (St. 1869, p. 65, c. 23), were repealed. St. Nev. 1871, p. 65, c. 21.

In 1879 (St. Nev. 1879, p. 28, c. 19) another act was passed by the Legislature of the state of Nevada, entitled 'An act to prevent discrimination in fares and freights by railroad companies whose railroads run through the state of Nevada, or by railroad companies, the terminus or termini of whose railroads are within the state of Nevada. ' This act prohibits discrimination either in charges or services. It also prohibits rebates, drawbacks, combinations to prevent continuous carriage, and charging more per car load or part thereof, of similar property, per mile for a shorter than for a longer distance in one continuous carriage. The act requires carriers to adopt and post schedules of freight rates, which shall remain in full force until another schedule has been substituted and posted, for at least five days, and it was made unlawful 'to charge or receive more or less compensation for the carriage, receiving, delivery, loading, unloading, handling' of property 'than shall be specified in such schedule as may at the time be in force. ' By section 6, the provisions of this act were made to apply to all property, and the receiving, delivery, loading, unloading, handling, storing, or carriage of the same on one actually or substantially continuous carriage, and whether carried on one railroad or partly on several railroads. And it was expressly provided by said section that each and every railroad company, as aforesaid, shall fix its own rate or rates of its schedule, and such rate or rates of the schedule so fixed shall not govern or affect the rate or rates of any other railroad company; and provided, further, that such rate or rates in such schedules so fixed shall not exceed the rate or rates now allowed to be charged by law. Sections 7 and 8 provide that every person, company, corporation, or officer, receiver, trustee, lessee, or agent of any company or person engaged in transporting property by railroad in Nevada who violates any provision of the act shall forfeit and pay to the person injured thereby a sum equal to three times the damage suffered, and shall also forfeit and pay a penalty of not less than $2,000. The act does not refer to any previous act, nor does it contain any repealing clause whatever.

March 5, 1907, the Legislature of the state of Nevada passed an act entitled: 'An act to regulate railroads, telegraph and telephone companies and other common carriers in this state, creating a Railroad Commission, constituting the Governor, the Lieutenant Governor, and the Attorney General a railroad board for the appointment and removal of the Railroad Commissioners, prevent the imposition of unreasonable rates, prevent unjust discrimination, insure an adequate railway service, and fixing maximum freight charges. ' St. Nev. 1907, p. 73, c. 44.

The act, in so far as it is material to this proceeding, is as follows:

'Section 1. A Railroad Commission is hereby created, to be composed of three commissioners. The Governor, the Lieutenant-Governor, and the Attorney-General shall constitute a railroad board for the purpose of appointing such commissioners. A majority of the members of said railroad board may perform all the duties required of such board. Within thirty days after the passage of this act the railroad board shall appoint such commissioners and designate the term of each, and they shall hold until their successors are appointed. The term of one such appointee shall terminate on the first Monday in February, 1909; the term of the second such appointee shall terminate on the first Monday in February, 1910; and the term of the third such appointee shall terminate on the first Monday in February, 1911. On the second Monday in January, 1909, and annually thereafter, there shall be appointed in the same manner, one commissioner for the term of three years from the first Monday in February of such year. Each commissioner so appointed shall hold office until his successor is appointed and qualified. Any vacancy shall be filled by appointment by the railroad board.'

Subdivision 'a' prescribes the qualifications of the commissioners. 'b' provides that commissioners, for inefficiency, neglect of duty, or malfeasance, may be removed by the railroad board. 'c' provides that the commissioners shall have no

pecuniary railroad interests. 'd' provides that:

'Whenever a complaint is made to the commission of a violation of any of the provisions of this act, or of any order of the commission, it shall, within four months, commence an investigation of said charge and shall determine the same within six months, unless the person preferring said charges shall agree in writing to a longer time. A failure to comply with this provision shall ipso facto render the office of each of the commissioners vacant, and the railroad board shall appoint new commissioners as provided for by this act.'

Subdivision 'e' provides that one commissioner must devote his entire time to the duties of the office; 'f' that commissioners must take the official oath; 'g' provides a salary of $5,000 per annum for the commissioner who devotes his entire time, and $2,500 for each of the others. 'h,' 'i,' and 'j' provide for the meeting and organization of the commission, the election of a chairman, and the appointment, salary, qualification, and duties of the secretary. 'k' provides that the commissioners shall be known collectively as 'Railroad Commission of Nevada,' and in that name may sue and be sued, and it shall have an official seal by which it shall authenticate its proceedings. 'l' requires the commission to keep its office at Carson, though it may hold sessions at other places.

'(m) The commission shall have the power to adopt and publish rules to govern its proceedings, and to regulate the mode and manner of all investigations and hearings of railroads and other parties before it, and all hearings shall be open to the public.'

The commission is authorized to confer by correspondence, or by attending conventions, with the railroad commissioners of other states, and with the Interstate Commerce Commission.

Section 2 defines the term 'railroad,' and extends the provisions and penalties of the act so far as applicable, and the supervision and control of the commission to express companies, telegraph and telephone companies.

Section 3 requires every railroad to furnish adequate facilities charges...