State ex rel. Transp v. Fremont, E. & M. V. R. Co.

• Decision Date: 10 November 1887
• Citation: 35 N.W. 118,22 Neb. 313
• Court: Nebraska Supreme Court
• Parties: STATE EX REL. BOARD OF TRANSPORTATION v. FREMONT, E. & M. V. R. CO.

22 Neb. 313

35 N.W. 118

STATE EX REL. BOARD OF TRANSPORTATION

v.FREMONT, E. & M. V. R. CO.

Supreme Court of Nebraska.

November 10, 1887.

Syllabus by the Court.

The attorney general is the law officer of the state and is required to prosecute or defend any case in the supreme court in which the state is a party or interested; therefore, where a majority of the board of transportation of the state adopted a resolution asking the supreme court to continue a case pending therein against a railroad company to compel such company to conform its rates and charges to an order previously made by said board, held, that the board has no authority to control the action of the attorney general in the management of the case.

Where a railroad company demurred to an alternative writ requiring it to reduce its rates and charges to conform to an order of the board of transportation, and denied the power of the board to reduce such rates and charges, held, that the court would determine the question of the power of the board to make the order in question before entering upon an examination of the facts, and therefore would not permit the demurrer to be withdrawn.

The act to regulate railroads and prevent unjust discriminations, approved March 31, 1887, provides that all the charges made for service rendered, or to be rendered, by any railway company in the state, in the transportation of passengers or property, shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful; and requires such railway company to print and keep for public inspection, schedules showing the rates and fares and charges which have been established and are in force at the time upon such railroad. Held, that the board of transportation has authority to determine in the first instance what are just and reasonable charges for the services rendered, or to be rendered, on such railway.

The act in question prohibits any preference or advantage to any particular person, company, corporation, or locality, or any particular description of traffic in any respect, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic to any prejudice or disadvantage in any respect, and places the general supervision of all railroads within the state in the board of transportation, and requires it carefully to investigate any complaint made in writing, and under oath, concerning any unjust discrimination against any person, firm, corporation, or locality, either in rates or facilities furnished, in order to prevent unjust discriminations against either persons or places.

The word “locality” mentioned in the statute means the territory unjustly discriminated against, and may be a village, city, county, or portion of the state.

The power to determine what is an unjust rate and charge, and the extent of the same, and to prevent unjust discrimination, carries with it the power to decide what is a just rate and charge, and authorizes the board to fix just and reasonable rates and charges.

The finding of facts by the board of transportation in any matter submitted to it under the above statute for determination, is prima facie evidence of the existence of such facts and of the reasonableness of an order made by said board in pursuance thereof.

The act to regulate railroads and prevent unjust discriminations, approved March 31, 1887, being a remedial statute, is to receive a liberal construction to carry into effect the purpose for which it was enacted.

Where the board of transportation has investigated charges of unjust discrimination against a railroad company, and has found such unjust discrimination to exist, and ordered such railroad company to reduce its rates to conform to a schedule presented by such board, which order the railroad company neglected to comply with, mandamus is a proper remedy to enforce such order, and the mention of the district court in the statute will not preclude bringing the action in the supreme court, where the latter court has original jurisdiction.

Mandamus.

O. P. Mason and William Leese, Atty. Gen., for relator.

John B. Hawley, ( T. M. Marquett, with him,) for respondent.

MAXWELL, C. J.

1. On the twenty-fourth day of September, 1887, the board of transportation of this state served notice upon the respondent, requiring it to reduce its freight charges 33 1-3 per cent. on all its lines within the state of Nebraska, on or before October 1, 1887, a schedule of charges to be made, as reduced, for freight on the said line of road within the state being furnished to the respondent. The respondent neglected to comply with the order of the board of transportation, and on the fourth day of October, 1887, the board, through the attorney general of the state, applied for an alternative writ of mandamus to compel the respondent to comply with said order. The writ was returnable on the fifth of that month, when the respondent, by its attorney, appeared and prayed for additional time in which to plead to the writ, which was granted. The respondent demurred to the complaint, and also to the alternative writ, and the case was set for hearing on the eleventh day of October, 1887. On that date the attorney for the respondent appeared, and the attorney general being absent at Washington on business pertaining to his office, the case was passed until his return. On his return the case was set for hearing on the thirty-first day of October, 1887. At that date the attorney for the respondent appeared and filed a statement of an alleged compromise with the board of transportation of the state, except the attorney general, and also a resolution of said board, except said attorney general, asking the court to continue the case until the January term. This the attorney general resists, and insists that the case shall proceed, in order that the authority of the board over the subject-matter may be determined. The first question presented, therefore, is the authority of the attorney general to proceed with the prosecution of the case against the protest of a majority of the board of transportation.

Section 1 a, art. 5, c. 83, Comp. St. 1887, provides that “the attorney general shall appear for the state, and prosecute and defend all actions and proceedings,civil or criminal, in the supreme court in which the state shall be interested or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state and prosecute and defend in any court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party or interested.” The attorney general is thus the law officer of the state, and intrusted by law with the management and control of all cases in which the state is a party or interested. The majority of the state board of transportation, therefore, cannot control his actions in the premises, and the motion to continue the cause must be overruled.

2. Upon the overruling of the motion for continuance, the attorney for the respondent asked leave to withdraw the demurrer, and for time in which to prepare and file an answer. This, however, cannot be permitted. The respondent denies the authority of the state board to regulate and control the rates of freight upon its lines of railway. The question of power is fully raised by the demurrer, and should be decided before entering upon the consideration of questions of fact. It is important, too, that if such power should be found to exist, that the question be determined, so that parties aggrieved may apply to the board for relief. The motion for leave to withdraw the demurrer and file an answer is therefore overruled. If, however, the court should decide that the board of transportation has the power to regulate rates, as contended for in the petition and alternative writ, the demurrer will be overruled, and upon proper application the defendant will have leave to answer.

3. It is a matter of the public history of the state that for a number of years prior to the thirty-first day of March, 1887, it was generally claimed some or all of the railroads of the state had granted secret rebates to favorite shippers over their lines; that the effect of such rebates was to charge a party not thus favored a larger sum for the same service than was charged to the favorite shipper; that equal facilities, in many cases, were not furnished to all who desired to ship, either goods, grain, or stock, and business, as far as possible, was thrown into the hands of favorite parties. It was also claimed that certain prominent competing points in the state which had paid large sums as donations to secure competing lines, had actually been discriminated against by the increase in rates, and that charges generally throughout the state were much higher than those of other states having the same amount of business. Other wrongs were claimed which need not be noticed here. To correct these wrongs, the legislature, at its last session, passed “An act to regulate railroads, prevent unjust discriminations, provide for a board of transportation, and define its duties, and repeal articles 5 and 8 of chapter 72, entitled ‘Railroads,’ of the Revised Statutes, and all other acts and parts of acts in conflict therewith.” Comp. St. 1887, pp. 563-570. The first section of the act provides that it shall apply to any common carrier, or carriers, engaged in the transportation of passengers or property by railroad under a common control, management, or arrangement, for continuous carriage or shipment from any point in the state of Nebraska to any other point in said state, and requires that all charges made for any service rendered, or to be rendered, in the transportation of passengers or property, shall be reasonable and just; and prohibits unjust and unreasonable charges, and declares them to be unlawful. The second section declares that no common...