State ex rel. Board of Transportation v. Sioux City

• Decision Date: 09 January 1896
• Docket Number: 7526
• Parties: STATE OF NEBRASKA, EX REL. BOARD OF TRANSPORTATION, v. SIOUX CITY, O'NEILL & WESTERN RAILROAD COMPANY, F. C. HILL, ITS RECEIVER, AND FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY
• Court: Nebraska Supreme Court

65 N.W. 766

46 Neb. 682

STATE OF NEBRASKA, EX REL. BOARD OF TRANSPORTATION, v. SIOUX CITY, O'NEILL & WESTERN RAILROAD COMPANY, F. C. HILL, ITS RECEIVER, AND FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY

No. 7526

Supreme Court of Nebraska

January 9, 1896

ERROR fro the district court of Holt county. Tried below before CHAPMAN, J.

AFFIRMED.

A. S Churchill, Attorney General, George A. Day, Deputy Attorney General, and W. A. Dilworth, for plaintiff in error:

In an argument against the contentions that chapter 11, Session Laws of 1893, is void for uncertainty, and that the act creates no tribunal, in case of a disagreement of the companies, to determine their respective rights, reference was made to the following authorities: Texas Express Co v. Texas & P. R. Co., 6 F. 437; Southern Express Co v. Iron M. & S. R. Co., 10 F. 210; McCoy v. Cincinnati, I., St. L. & C. R. Co., 13 F. 3; State v. Republican V. R. Co., 17 Neb. 647.

The transfer switch is a facility for conducting the business of a railroad. The act does not, therefore, deprive the carriers of their property without due process of law. It does not deny them the equal protection of law, nor provide for taking their property without compensation. Its effect is not to impair the obligations of contracts. (Chicago, M. & St. P. R. Co. v. Becker, 32 F. 854; Burlington, C. R. & N. R. Co. v. Dey, 48 N.W. [Ia.], 98; Peoria & P. U. R. Co. v. Chicago, R. I. & P. R. Co., 109 Ill. 135; Louisville & N. R. Co. v. Boland, 18 L. R. A. [Ala.], 260; Reagan v. Mercantile Trust Co., 154 U.S. 418; San Antonio & A. P. R. Co. v. State, 79 Tex. 264; State v. Wabash, St. L. & P. R. Co., 83 Mo. 144; State v. Kansas City, Ft. S. & G. R. Co., 32 F. 722; Smith v. Chicago, M. & St. P. R. Co., 53 N.W. [Ia.], 128; Vincent v. Chicago & A. R. Co., 49 Ill. 33; People v. Chicago & A. R. Co., 55 Ill. 95; Chicago & A. R. Co. v. Suffern, 129 Ill. 274; Hoyt v. Chicago, B. & Q. R. Co., 93 Ill. 609; People v. New York, L. E. & W. R. Co., 28 Hun [N. Y.], 549; Abbott v. Johnstown, G. & K. H. R. Co., 80 N.Y. 27; State v. Hartford & N. H. R. Co., 29 Conn. 538; Covington Stock Yards Co. v. Keith, 139 U.S. 128; Wight v. Missouri P. R. Co., 20 Mo. App., 481; Budd v. State of New York, 143 U.S. 517; Brass v. State of North Dakota, 153 U.S. 391; Thorpe v. Rutland & B. R. Co., 27 Vt. 140; State v. Chicago, B. & Q. R. Co., 2 Am. R. & C. Rep. [Neb.], 664; American Rapid Telegraph Co. v. Hess, 4 Am. R. & C. Rep. [N. Y.], 199; Maine v. Grand T. R. Co. of Canada, 5 Am. R. & C. Rep. [U. S.], 248; Galena & C. U. R. Co. v. Rae, 68 Am. Dec. [Ill.], 374.)

William B. Sterling and Lloyd W. Bowers, contra:

By the act, a railroad is required to engage in the business of transporting freight beyond its own line of road, and so is forced into an occupation which it has never bound itself to enter. Such legislation is a deprivation of liberty and property without due process of law, abridges the immunities guarantied to railroads as to others, and denies them the equal protection of the laws, all in contravention of section 1 of the fourteenth amendment to the constitution of the United States. (Zabriskie v. Hackensack & N. Y. R. Co., 18 N.J.Eq. 178; Ames v. Lake Superior & M. R. Co., 21 Minn. 255; 2 Morawetz, Private Corporations [2d ed.], secs. 1047, 1059; Hutchinson, Carriers [2d ed.], sec. 145; Kentucky & Indiana Bridge Co. v. Louisville & N. R. Co., 37 F. 567; Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U.S. 668.)

The rates fixed by the act for any transportation of freight in the course of which a transfer switch is traversed are unreasonable, and have the effect of taking property without due process of law, in disregard of both the federal and state constitutions. (Reagan v. Farmers Loan & Trust Co., 154 U.S. 362; Black, Constitutional Law, pp. 318, 324, 325; In re Jacobs, 98 N.Y. 98; Toledo, W. & W. R. Co. v. City of Jacksonville, 67 Ill. 37.)

The right of railroads, under their charters from congress and the state of Nebraska, to charge reasonable rates, is a contract right, and is subject to regulation only by the legislative power of the state in the proper exercise of the police power, and for the purpose and to the extent of preventing unreasonable charges; but the act in question subjects the rates of one railroad to control by other railroads, and places the rates under arbitrary and unreasonable restrictions, thereby impairing the obligation of the contract growing out of the company's charter, and so violating article 1, section 10, of the federal constitution. (3 Am. & Eng. Ency. Law, 741; Black, Constitutional Law, p. 536; Cooley, Constitutional Limitations [5th ed.], p. 712; Pingry v. Washburn, 1 Aik. [Vt.], 264; New Orleans Gas Light Co. v. Lousiana Light & Heat Producing & Mfg. Co., 115 U.S. 650.)

The rates fixed by the statute for the transportation of freight in the course of which a transfer switch is traversed are absolute and are conclusively imposed, whether actually reasonable or not. The rates are established finally, instead of being merely declared presumptively reasonable; and under the terms of the statute, judicial inquiry into the actual reasonableness of the rates is immaterial and improper; for this reason, the act takes property without due process of law, and also denies the equal protection of the laws, contrary to the federal and state constitutions. (Chicago, M. & St. P. R. Co. v. State of Minnesota, 134 U.S. 418.)

Wright, Hubbard & Bevington, John B. Hawley, and B. T. White, also for defendants in error.

OPINION

The opinion contains a statement of the case.

RYAN, C. J.

This action was begun in the district court of Holt county, as shown by the prayer of the application for a writ of mandamus to compel the defendants to build forthwith, a transfer or connecting switch at O'Neill, in said county, whereby the lines of the respondent railroad companies might be connected one with the other, and upon completion of said transfer switch to henceforth maintain the same in good condition and to receive and forward freight in car load lots offered by one road to the other offered on or over said transfer switch, and to place in force a joint schedule of rates between stations on the lines of each of said roads whereby freight in car load lots might be carried from a station on one road to a station on the other, which said rates should be for the rate for the shortest mileage by any railroad between the point of shipment and the point of destination; or, to show cause, by a day fixed, why said order should not be complied with, and, upon final hearing, that said order be made final, and for such other and further order as might be required and which a full and complete carrying out of the statute set forth in the application aforesaid should demand. It is not necessary to more fully state the nature of this action further than to say that by the application it was shown that the lines of railroad owned and operated by the defendant companies touched each other at O'Neill and at that point each received and delivered freight; that the board of transportation of the state of Nebraska, before the commencement of this action, had found a necessity for a transfer switch between said lines and had duly ordered the same to be constructed, and that the respondents, and each of them, had failed and refused to build and maintain such switch. The right to the relief above prayed was based upon the provisions of chapter 11, Laws, 1893. It is not possible to determine whether or not the connection by transfer switch could have been compelled, under the provisions of section 113, chapter 16, Compiled Statutes, for there are contained in the application no averments showing the existence of prerequisites indispensable under this section. A general demurrer to the petition by each defendant was sustained, and from the judgment of dismissal, thereupon following, plaintiff has prosecuted error proceedings to this court.

The first and second sections of chapter 11, pages 142, 143, Laws, 1893, contain the provisions concerning which most of the arguments in this case have been made. The enacting clause and these sections are in the following language:

"Be it enacted by the legislature of Nebraska:

"Section 1. That all railroads touching the same point in this state at which point such railroads receive and deliver freight, or at some near point, shall build and maintain transfer switches for common use in transferring freight in car load lots from one such railroad to another, and receive and forward such freight according to the provisions of this act; Provided, That the railroad interested may apply to the state board of transportation to be relieved of this duty in any case where its performance is unusually burdensome, and if, upon a personal examination of the locality where the transfer switches are to be put in, and taking testimony of the persons residing in the locality, by the secretaries of such board, they find it unjust and unreasonable to require the building of such transfer switches, then such board may relieve such roads of such duty, and that evidence from any locality along the lines of roads interested shall be considered by said board, and be competent testimony in such case.

"Sec 2. That whenever a shipper of freight from any point in this state to any other point in this state over two or more lines of railroads to reach such point of destination, it shall be the duty of all such railroads as come under the provisions of this act to receive and deliver all such freight in car lots, on board cars upon such transfer switch. The railroad company at point of shipment shall make a through way bill to point of destination, and the rate to be charged for such...