State ex rel. State Ry. Com'n v. Ramsey

• Decision Date: 13 May 1949
• Docket Number: 32576.
• Citation: State ex rel. State Ry. Com'n v. Ramsey, 37 N.W.2d 502, 151 Neb. 333 (Neb. 1949)
• Parties: STATE ex rel. STATE RAILWAY COMMISSION v. RAMSEY et al.
• Court: Nebraska Supreme Court

37 N.W.2d 502

151 Neb. 333

STATE ex rel. STATE RAILWAY COMMISSION v. RAMSEY et al.

No. 32576.

Supreme Court of Nebraska

May 13, 1949

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Proceedings for a declaratory judgment extend to the validity of a statute where there is a justiciable determinable controversy between parties in respect to rights thereunder.

2. The State Railway Commission is authorized by the Constitution to regulate rates and service and to have general control of common carriers, within the state, as the Legislature may provide by law, and in the absence of specific legislation its powers and duties are unqualified.

3. The powers and duties of the State Railway Commission are derived from and an independent part of the Constitution, and are administrative, legislative, and judicial.

4. A Constitution is intended to respond and be applied to any conditions and circumstances as they arise in the course of the progress of the state.

5. The powers granted by a Constitution do not change, but they do apply in different periods to all things to which they are in their nature applicable.

6. Common carriers by air are indistinguishable from other common carriers with respect to the policy of the law.

7. Any person or organization engaged in transportation by air for hire is a common carrier.

8. Legislative and official interpretation long acquiesced in is entitled to weight in seeking the meaning of a doubtful constitutional provision.

9. The meaning of a constitutional provision is to be determined as of the time of its adoption, and the intent and understanding of its framers and the people who adopted it is the principal inquiry in construing it.

10. It is permissible in determining the meaning of language of a constitution to consider the facts of history, the evil intended to be overcome, the objects sought to be accomplished, and the scope of the remedy its terms include.

11. The authority of the State Railway Commission to regulate and control common carriers as the Legislature may provide by law, means in the manner in which the Legislature provides by specific legislation.

12. The word 'specific' as used in the phrase in the constitutional amendment providing for the State Railway Commission means the opposite of 'general' and is synonymous with 'particular'.

13. LB 247, Sixtieth Session of Nebraska Legislature, is general and not specific legislation, is in conflict with the provisions of Article IV, section 20, of the Constitution of Nebraska, and is invalid.

James H. Anderson, Atty. Gen., and Bert L Overcash, Asst. Atty. Gen., for relator.

Peterson & Devoe, of Lincoln, for defendants.

Beynon, Greenamyre & Hecht, of Lincoln, amicus curiae.

Heard before SIMMONS C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH Justice.

Original action by plaintiff, State of Nebraska ex rel. State Railway Commission, against defendants, James D. Ramsey, as Director of Aeronautics of the State of Nebraska, Department of Aeronautics of the State of Nebraska, and W. W. Cook, D. D. Mapes, Harold N. Jessen, Wendell Harding, M. M. Myers, as members of Nebraska Aeronautics Commission, to secure an adjudication that LB 247, Sixtieth Session of Nebraska Legislature, (Ss. 3-109 and 75-201, R.S.Supp., 1947) is invalid; that the State Railway Commission has general control of intrastate common carriers by air, including regulation of rates and service; and to secure an injunction prohibiting defendants from taking or continuing any action or proceeding with reference to the regulation or control of common carriers by air. The answer admits the allegations of fact in the petition. The State Railway Commission will be designated commission.

Proceedings for a declaratory judgment extend to the validity of a statute when there is a justiciable, determinable controversy between parties in respect to rights thereunder. Such proceedings have frequently been sustained to determine disputes as to the validity of statutes. Ss. 25-21, 149 to 25-21, 164, R.S.1943; Thorin v. Burke, 146 Neb. 94, 18 N.W.2d 664.

The act of the Legislature challenged herein (LB 247, Laws 1947, c. 9, p. 71, appearing as ss. 3-109 and 75-201, R.S.Supp., 1947) amended sections 3-109, R.S.Supp., 1945 and 75-201, R.S.1943, and contains these provisions:

'The Department of Aeronautics shall exercise general control over all aeronautics within this state, including the regulation of rates and services in connection with aeronautics for hire. It may (1) perform such acts, (2) issue and amend such orders, (3) make, promulgate, and amend such reasonable general or special rules, regulations, and procedure, (4) establish such minimum standards, (5) fix, modify, annul or otherwise revise such schedules of rates or services, and (6) permit, certify, prohibit or suspend such intrastate operations of aircraft, consistent with the provisions of this act, as it shall deem necessary to carry out the provisions of this act and to perform its duties hereunder; * * *.

'The State Railway Commission shall have the power to regulate the rates and services of, and to exercise a general control over, all railroads, express companies, car companies, sleeping car companies, freight and freight-line companies, and all other common carriers engaged in the transportation of freight or passengers within this state; Provided, that the commission shall have and exercise no control over aeronautics, and sections 75-101 to 75-512 shall be construed to have no application to the transportation of persons or property by aircraft.'

The position of the plaintiff is that the quoted parts of the act conflict with and violate the part of Article IV, section 20, of the Constitution of Nebraska, which provides: '* * * The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.' The Constitution includes among the powers and duties of the commission the regulation of rates, service, and general control of common carriers as the Legislature may provide by law, but in the absence of specific legislation its powers and duties as enumerated are absolute and unqualified. The commission has administrative, legislative, and judicial powers. These were bestowed upon it by an independent part of the Constitution which created the commission, and not as an amendment to the executive, legislative, or judicial articles thereof. The Constitution, in the absence of specific legislation, is self-executing, and is to be liberally construed. Chicago & N. W. Ry. Co. v. County Board of Dodge County, 148 Neb. 648, 28 N.W.2d 396; In re Yellow Cab & Baggage Co., 126 Neb. 138, 253 N.W. 80; Furstenberg v. Omaha & C. B. St. Ry. Co., 132 Neb. 562, 272 N.W. 756; Petersen v. Beal, 121 Neb. 348, 237 N.W. 146. This court has heretofore remarked concerning the 'broad, far-reaching and important powers' of the commission. State ex rel. Quinn v. Marsh, 141 Neb. 436, 3 N.W.2d 892, 898. The commission is a regulatory body of constitutional origin not amenable to legislative interruption or limitation of its status or powers except by specific legislation, and, since the amendment to the Constitution creating it is an independent one, it is not construed as other sections of the article to which it has been assigned by the compiler. State ex rel. Shields v. Hall, 103 Neb. 17, 170 N.W. 173; Omaha & C. B. St. Ry. Co. v. City of Omaha, 125 Neb. 825, 252 N.W. 407.

The term 'common carriers' includes all forms of transportation for hire, and the amendment providing for the commission was intended to control the common carrier business to which it relates at all times and under all developments. It was determined in this state more than half a century ago that a street railway company became a common carrier by undertaking the transportation of passengers for hire. Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 55 N.W. 270, 20 L.R.A. 316, 38 Am.St.Rep. 753; East Omaha Street Ry. Co. v. Godola, 50 Neb. 906, 70 N.W 491. Transportation is the important fact, and the form or method thereof is immaterial. Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37, 139 S.W. 680. The commission since its creation has had jurisdiction and power of control by virtue of the Constitution when the problem presented involved regulation of public transportation service. In re Application of Chicago, B. & Q. R. Co., 138 Neb. 767, 295 N.W. 389; State v. Union Stock Yards Co., 81 Neb. 67, 115 N.W. 627. A Constitution is intended to meet and be applied to any conditions and circumstances as they arise in the course of the progress of the community. The terms and provisions of constitutions are constantly expanded and enlarged by construction to meet the advancing affairs of men. While the powers granted thereby do not change, they do apply in different periods to all things to which they are in their nature applicable. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 24 L.Ed. 708; 11 Am.Jur., Constitutional Law, s. 51, p. 660; 9 Am.Jur., Carriers, s. 4, p. 430. These principles have been held to be applicable to transportation by air. 'Transportation, as its derivation denotes, is a carrying across, and, whether the carrying be by rail, by water or by air, the purpose in view and the thing done are identical in result.' Curtiss-Wright Flying Service v. Glose, 3 Cir., 66 F.2d 710, 712, certiorari denied 290 U.S. 696, 54 S.Ct. 132, 78 L.Ed. 599. See, also, Hotchkiss, The Law of Aviation, (2d ed.), s. 45, p. 62; Fixel, The Law of Aviation...