State ex rel. Transp v. Sioux City, O. & W. R. Co.

• Citation: 65 N.W. 766,46 Neb. 682
• Court: Supreme Court of Nebraska
• Decision Date: 09 January 1896
• Parties: STATE EX REL. BOARD OF TRANSPORTATION v. SIOUX CITY, O. & W. R. CO. ET AL.

46 Neb. 682

65 N.W. 766

STATE EX REL. BOARD OF TRANSPORTATION

v.SIOUX CITY, O. & W. R. CO. ET AL.

Supreme Court of Nebraska.

Jan. 9, 1896.

Syllabus by the Court.

1. The construction placed upon provisions of the federal constitution by the supreme court of the United States must be followed by state courts in all matters to which such provisions are applicable. Franklin v. Kelley, 2 Neb. 79, and Bressler v. Wayne Co., 41 N. W. 356, 25 Neb. 468, followed.

2. The provisions of chapter 11, Laws 1893, which require railroad companies, as an absolute finality, and without the right of judicial investigation by due process of law, to carry freights over longer lines for the same rates as required by any railroad company for hauling the same freight between the same points by a shorter line, no matter how great the disparity in the length of such hauls may be, are in conflict with the provision of the fourteenth amendment of the constitution of the United States that no state shall “deprive any person of life, liberty, or property without due process of law.” Chicago, M. & St. P. Ry. Co. v. Minnesota, 10 Sup. Ct. 462, 702, 134 U. S. 418, 458, and Reagan v. Trust Co., 14 Sup. Ct. 1047, 154 U. S. 362, followed.

3. It is not within the power of a court to make such an arrangement for the business intercourse of common carriers as, in the opinion of such court, they ought to make for themselves, for such function is legislative, rather than judicial. Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 4 Sup. Ct. 185, 110 U. S. 667;Pullman's Palace-Car Co. v. Missouri Pac. R. Co., 6 Sup. Ct. 194, 115 U. S. 587;Express Cases, 6 Sup. Ct. 542, 628, 117 U. S. 1,--followed.

4. The power of the legislature to require railroad lines to build and maintain transfer switches between themselves, being but an incidental consideration, is not discussed or decided in this case. The main purpose of chapter 11, Laws 1893, being the regulation of business intercourse of connecting railroad companies, said act is held invalid, as not being susceptible of enforcement as an entirety, for the reasons given in the second and third paragraphs of this syllabus.

Error to district court, Holt county; Chapman, Judge.

Petition, on the relation of the board of transportation, against the Sioux City, O'Neill & Western Railroad Company and others, for mandamus. There was a judgment of dismissal, and plaintiff brings error. Affirmed.A. S. Churchill, Atty. Gen., Geo. A. Day, Dep. Atty. Gen., and W. A. Dilworth, for plaintiff in error.

Wm. B. Sterling, Lloyd W. Bowers, Wright, Hubbard & Bevington, John B. Hawley, and B. T. White, for defendants in error.

RYAN, C.

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, 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 aforesaidshould 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, c. 16, Comp. St., 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, plaintiffs have prosecuted error proceedings to this court.

The first and second sections of chapter 11, 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 railroads 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 shipment shall not be the sum of two or more locals, but shall be apportioned between the different roads according to the mileage of each necessarily used in such shipment, and shall be the rate for the shortest mileage distance by any railroad between point of shipment and point of destination.”

The mandatory requirement of the first section is that railroad companies, situated as the defendants, shall build and maintain transfer switches for transferring car-load lots from one road to the other, and receive and forward the same according to the provisions of said act. The case has been presented on both sides upon the theory that the clause “according to the provisions of this act” relates to and qualifies each antecedent requirement; that is, of putting in and maintaining the transfer switch, as well as of receiving and forwarding freight. In this, we think, counsel correctly construed these provisions. In view of the fact that at the date of the passage of this act there was already in existence a section of the Compiled Statutes which required the construction of transfer switches, it is very clear that the main purpose of the act under consideration is to be found in its second section. The validity of this act will therefore be considered with reference to its chief object as defined in the said second section, rather than with reference to the duty to construct transfer switches,--a matter of minor importance. In Iowa a transfer-switch law was enacted by the legislature, of which some provisions resemble those found in the above act. It is not necessary that these should be copied or described at length, for the argument of the attorney general was based upon analogies sufficiently indicated by an opinion of the supreme court of that state filed in a cited case, to which we shall now refer. In Smith v. Railway Co. (Iowa) 53 N. W. 128, thus confidently relied upon by the plaintiff in error, there were considered but two questions. Of these, the first was whether the state was the proper party plaintiff. The other proposition decided is found correctly stated in the fourth paragraph of the syllabus, thus: “Code, § 1292, provides that a railroad corporation whose road intersects or crosses any other line of railway of the same gauge ‘shall’ connect its road with such other railway so intersected. Act 1878, § 3, provides that the railroad commissioners shall have general supervision of all the railroads in the state, and inquire into any neglect or violation of the laws of the state. Acts 20th Gen. Assem. c. 24, § 1, provides that corporations having intersecting roads shall, ‘whenever ordered by the railroad commissioners,’ unite and connect their tracks. Held, that the commissioners should order the connection of such tracks only when they deem it best, and need not do so regardless of its advisability.” In this case the railroad commissioners had, in effect, found that there was no necessity for the connection sought to be required, but ordered it, on the theory that the statute compelled them so to do, whether the connection was necessary or not. How the supreme court of Iowa viewed the construction followed by...