State v. Burlington & Missouri River Railroad Company

• Decision Date: 21 November 1901
• Docket Number: 11,219
• Citation: 84 N.W. 254,60 Neb. 741
• Parties: STATE OF NEBRASKA v. BURLINGTON & MISSOURI RIVER RAILROAD COMPANY
• Court: Nebraska Supreme Court

84 N.W. 254

60 Neb. 741

STATE OF NEBRASKA v. BURLINGTON & MISSOURI RIVER RAILROAD COMPANY

No. 11,219

Supreme Court of Nebraska

November 21, 1901

ORIGINAL action in the supreme court to recover penalties under section 9, article 8, chapter 72, of the Compiled Statutes, in the sum of $ 25,000. Submitted on demurrer to petition. Dismissed.

Demurrer sustained, and action DISMISSED.

Constantine J. Smyth, Attorney General, for the state.

Green Breckenridge & Kinsler, J. W. Deweese and Frank E. Bishop contra. Charles F. Manderson, of counsel.

Woolworth & McHugh, amici curiae.

NORVAL C. J. HOLCOMB, J. concurring.

OPINION

NORVAL, C. J.

On July 13, 1897, one T. H. Tibbles filed a complaint with the state board of transportation charging that the Burlington & Missouri River Railroad Company in Nebraska was exacting and receiving unjust and unreasonable rates on the shipments of live stock. A hearing was had before said board of the matter alleged in said complaint, which resulted in an order being entered on November 26, 1897, that the defendant, on or before December 5, 1897, restore the car load rates in force prior to August 10, 1897. Subsequently the board extended the time for taking effect of said order until December 16, 1897. The state claims that the defendant has violated said order of the state board of transportation, and this action was commenced in this court to recover the sum of $ 25,000 as penalties for such alleged violation, for which provision is made in section 9, article 8, chapter 72, Compiled Statutes. A demurrer to the petition has been interposed, upon which the cause has been submitted for our consideration.

The legislature in 1885 passed an act entitled "An act to provide a board of railroad commissioners, to define their duties and to provide for their salaries." Session Laws, 1885, ch. 65, Compiled Statutes, 1885, ch. 72, art. 8, By this act the attorney general, secretary of state and auditor of public accounts were constituted the board of railroad commissioners. Chapter 60 Session Laws 1887, is entitled "An act to regulate railroads, prevent unjust discrimination, 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 acts and parts of acts in conflict herewith." Compiled Statutes, 1887, ch. 72, art. 8. Said chapter 60 provided for a state board of transportation composed of the state officers already mentioned, together with the state treasurer, and clothed it with power to determine and establish reasonable rates of transportation for common carriers of freight. One of the questions raised by the demurrer is whether the state board of transportation has a legal existence. In other words, was chapter 60, Session Laws, 1887, passed by the legislature in the manner prescribed by the constitution? If the act was unconstitutional, then the order of the board of transportation of November 26, 1897, was invalid, and no penalties were incurred by the defendant by reason of any violation thereof. Section 11, article 3, of the constitution provides: "Every bill and concurrent resolution shall be read at large on three different days in each house, and the bill and all amendments thereto shall be printed before the vote is taken upon its final passage. No bill shall contain more than one subject, and the same shall be clearly expressed in its title." This section has been frequently before this court for consideration, and its provisions have been repeatedly held to be mandatory, and that any legislation in disregard thereof is unconstitutional and void. The title to a legislative bill must clearly express the subject of legislation. It will be observed that the title to chapter 60, Session Laws 1887, as disclosed by the enrolled bill in the office of the secretary of state, among other things mentions the repeal of "articles 5 and 8 of chapter 72, entitled 'Railroads,' of the Revised Statutes." The Revised Statutes of Nebraska contains no chapter numbered 72, nor yet one entitled "Railroads," and chapter 72, General Statutes of 1873, relates to the "seat of government," and is not subdivided into articles. It is chapter 72, Compiled Statutes, 1885, which bears the title of "Railroads," and contains articles 1 to 9, inclusive. If it were articles 5 and 8 of this chapter that was intended to be repealed by chapter 60, Session Laws, 1887, this portion of the subject of legislation was not with clearness and certainty expressed in the title of the bill as enrolled.

But said chapter 60 is invalid for reasons more substantial. It is conceded that no bill bearing the title to the enrolled act known as chapter 60, Session Laws, 1887, was ever introduced in either house of the legislature, but the contention of the state is that the act in question originated in the senate and was known as Senate File 41. The title by which it was introduced was "A bill for an act to repeal article 8, of chapter 72, entitled 'Railroads,' of the second edition of the Compiled Statutes of the State of Nebraska." The purpose of that bill was solely the repeal of the law creating the board of railroad commissioners, passed in 1885, and such object was with sufficient clearness expressed in the title of the act but it contained no provision for the creation of a state board of transportation. But it is argued by the attorney general that said Senate File No. 41 was amended in the senate and duly passed by both houses of the legislature of 1887. It appears that Senate File No. 41, after having been read in the senate on two different days, was referred to, and reported back by the appropriate committee under the title by which it was introduced. Thereafter all after the enacting clause was stricken from the bill, and what now constitutes the act creating the board of transportation was substituted, but the title remained unchanged, and in this condition the act was read the third time, placed upon its passage and received the required number of affirmative votes to carry the same. The journal of the senate, after stating these facts, recites: "A constitutional majority having voted in the affirmative, the bill was passed and the title agreed to as amended." The journal of the senate does not disclose that the original title under which the act was introduced was ever amended in that body, unless such fact is revealed by the quotation just made. The journal of the house discloses that it was reported to the lower house by the secretary of the senate that that body had passed "Senate File No. 41, a bill for an act to repeal article 8 of chapter 72, entitled 'Railroads,' of the second edition of the Compiled Statutes of the state of Nebraska." The journal of the house shows that the bill was read the first and second times in that body under the title now appearing on the enrolled bill. Under the same title the bill was referred to and reported back by the railroad committee with a majority and minority report. Subsequently the journal of the house states that "Senate File No. 41, a bill for an act to repeal article 8 of chapter 72, entitled 'Railroads,' of the second edition of the Compiled Statutes of the state of Nebraska, was read the third time and put upon its passage," and a constitutional majority, upon the call of the yeas and nays, having voted in favor of the bill, it was "passed and the title was agreed to." Thereafter the clerk of the house notified the senate that the house had passed "Senate File No. 41, a bill for an act to repeal article 8, of chapter 72, entitled 'Railroads,' of the second edition of the Compiled Statutes of the state of Nebraska." Subsequently the committee on engrossed and enrolled bills reported to the senate that it had carefully examined and compared "Senate File No. 41, an act to regulate railroads, prevent unjust discrimination, provide for a board of transportation and define its duties, and...