State v. Chi., B. & Q. R. Co.

• Decision Date: 28 February 1911
• Docket Number: No. 16,535.,16,535.
• Citation: 88 Neb. 669,130 N.W. 295
• Court: Nebraska Supreme Court
• Parties: STATE v. CHICAGO, B. & Q. R. CO.

88 Neb. 669

130 N.W. 295

STATE

v.CHICAGO, B. & Q. R. CO.

No. 16,535.

Supreme Court of Nebraska.

Feb. 28, 1911.

Syllabus by the Court.

By the provisions of the Constitution this court has original jurisdiction of all civil cases in which the state is a party. Article 6, § 2.

Any civil action in which the state has such interest as that the action may be brought and prosecuted in the name of the state is within the original jurisdiction of this court.

A court of equity has jurisdiction to enjoin the violation by a railroad corporation of the act of 1909, which forbids intoxication and the drinking of intoxicating liquors upon railroad trains. Laws 1909, c. 83.

Such action is properly brought in the name of the state by the Attorney General acting in his official capacity, upon the application of the State Railway Commission; and when so brought this court has original jurisdiction thereof.

Action by the State against the Chicago, Burlington & Quincy Railroad Company. Demurrer to petition overruled.

Barnes, J., dissenting.

W. T. Thompson and G. G. Martin, for the State.

Jas. E. Kelby and H. F. Rose, for defendant.

SEDGWICK, J.

This is an original action in this court, begun in the name of the state by the Attorney General upon the application of the State Railway Commission. The petition alleges that defendant is a corporation authorized to do business in this state, and that the business which it is authorized to do “is the building and operation of public highways in said state for the carriage and transportation of persons and property within and through, and in and out of, said state for hire and profit. That defendant has been for many years last past, and now is, operating about 2,000 miles of railroad in the state of Nebraska, carrying thereon and thereover passengers and freight, both state and interstate; and that on many of its passenger trains in said state it maintains and hauls dining and buffet cars for the convenience and accommodation of its passengers, and for profit and benefit to defendant.” That, notwithstanding the provisions and prohibitions of the statute hereinafter set forth, “the said defendant, by and through its employés, agents, conductors, and porters, has been continuously for many years last past, and now is, furnishing, supplying, and selling to its passengers patronizing said dining and buffet cars, through its servants, agents, conductors, and porters, in and upon its said dining and buffet cars in the state of Nebraska, intoxicating, malt, spirituous, and vinous liquors without itself, or its porters, servants, agents, or conductors first having procured a license to sell such liquors in the counties through which it hauls its said dining and buffet cars in the state of Nebraska.” It specified 45 counties of the state through which the defendant so operates, and alleges: “That the sales of said liquors on said cars are unlawfully made, and said liquors are unlawfully suffered and permitted by defendant, its agents, conductors, employés, and porters, to be drunk thereon; that the attention of defendant has been, by the Nebraska State Railway Commission, repeatedly called to the fact that such liquors were and are being unlawfully sold on its said cars; that said Commission has urged and requested defendant to desist from selling said liquors on said cars; yet, notwithstanding said notice and request by said Commission, defendant has failed, neglected, and refused to discontinue said unlawful conduct, and still fails, neglects, and refuses to respect the laws of the state of Nebraska in that behalf and the request and demand of the said Nebraska State Railway Commission; that said dining and buffet cars on which said intoxicating liquors are by defendant, its agents, conductors, employés, and porters so, as aforesaid, unlawfully sold and suffered and permitted to be drunk are attached to and hauled by its fast limited passenger train, which do not stop at all its stations on its lines, but only at a limited number thereof, making rapid runs and crossing county lines without stopping and stopping only a few minutes at larger stations, thereby making it impossible for county and prosecuting attorneys to locate the exact county where sales are made, the name or names of the individual or individuals through whom the sale or sales are made, the name or names of the person or persons to whom the sale or sales are made, thus rendering it practically impossible for such county attorneys to bring and successfully prosecute criminal actions for individual violations of the law. Moreover, it is rendered practically impossible to make arrests of persons on said trains without interfering with and delaying interstate commerce and the carrying of the United States mails; and to secure obedience to and respect for the laws of the state of Nebraska in the premises, the state is without any adequate remedy or means of redress, except in a court of equity by injunction to restrain defendant,its officers, agents, servants, conductors, employés, and porters from violating said law. That defendant did not have, and has not now, any express power or authority under its articles of incorporation or charter to sell intoxicating liquors within the state of Nebraska, nor is the power or authority to sell intoxicating liquors one of the implied powers of such corporation, nor is such sale incidentally necessary to enable defendant to carry into effect its express or chartered powers as a corporation, and all sales of intoxicating liquors that are being made and have been made by defendant are ultra vires; and that the sale of intoxicating liquors by and on the part of defendant constitutes an excess and abuse of its corporate franchise, a violation of public law to the public determent, productive of public mischief, tends to defeat public policy, and constitutes a continuous nuisance that cannot be stopped or abated, except by injunctive order made and issued in and by a court of equity.” The petition also asks for a temporary injunction against the defendant, restraining and enjoining the defendant, “its agents, officers, servants, conductors, employés, and porters, from selling intoxicating, malt, spirituous, or vinous liquors to its passengers or others on its said dining and buffet car or cars, or on any other of its said cars, in its trains carrying passengers in any of the counties in the state of Nebraska through which the same are hauled, in which defendant has not first procured a license to sell said liquors, and enjoining and restraining said defendant, its agents, officers, servants, conductors, employés, and porters, from suffering and allowing said liquors to be drunk upon its passenger trains within the state of Nebraska; that upon the final hearing of this cause said injunction be made perpetual.”

To this petition the defendants have filed a general demurrer upon two grounds: First. “The court has no jurisdiction of the subject-matter of the action.” Second. “The petition does not state facts sufficient to constitute a cause of action.” The statute forbids the selling of intoxicating liquors in this state without first obtaining a license therefor, and in 1909 the Legislature enacted a statute entitled, “An act to prevent intoxication and the drinking of intoxicating liquors on passenger trains and coaches in the state of Nebraska, and providing a penalty for failure to enforce the provisions thereof.” Laws 1909, c. 83. The act appears as section 4255c1 to 4255c4 of the Compiled Statutes of 1909. The first section of the act is as follows: “It shall be unlawful for any person to be found in a state of intoxication or to drink intoxicating liquors of any kind, as a beverage upon any railway passenger train, coach, closet or vestibule thereof, or platform connected therewith, while said passenger train or coach is in the service of passenger transportation within this state; and all conductors finding any person in a state of intoxication or drinking intoxicating liquors of any kind, as a beverage, upon said train or trains, are hereby authorized and empowered to remove such person from the train, and if any person found drinking intoxicating liquors thereon shall not desist or abstain immediately after being advised to so do by such conductor, then such intoxicated person or persons drinking intoxicating liquors, of any kind as a beverage upon said train, may be removed by such conductor at the first station at which the train may stop, having a depot and a depot platform, provided that such removal shall not take place in the night time, unless there are people upon said platform in whose charge such person so removed may be placed; and if the person removed has any unused portion of his ticket for transportation, the conductor so removing him from said train shall furnish the person so removed with a written statement showing the amount of such unused transportation, and the same shall entitle the holder to a refund, from the railroad company issuing the same, of the value of the unused transportation, which shall be payable at any station of the company where tickets are sold. upon demand and surrender of the conductor's written statement aforesaid.” The second section makes it a misdemeanor for any person to be found in an intoxicated condition riding upon railroad trains or found drinking intoxicating liquors of any kind as a beverage after having been ordered to desist therefrom by the conductor, while on such train. The third section makes it the duty of the railroad companies to keep the provisions of this act in plain, legible print posted in some conspicuous place in each and every passenger coach, sleeping or dining car; and the fourth section of the act makes it the duty of the Nebraska State Railway Commission “to see that the provisions of this act are enforced.”

The first question presented is as to the jurisdiction of this court. The original...