State v. Pacific Express Co.

• Decision Date: 05 March 1908
• Docket Number: 15,307
• Citation: 115 N.W. 619,80 Neb. 823
• Parties: STATE OF NEBRASKA v. PACIFIC EXPRESS COMPANY
• Court: Nebraska Supreme Court

115 N.W. 619

80 Neb. 823

STATE OF NEBRASKA v. PACIFIC EXPRESS COMPANY

No. 15,307

Supreme Court of Nebraska

March 5, 1908

ORIGINAL action by the state to enjoin defendant from putting into effect charges or rates other than those established by law. Defendant filed plea in abatement. Overruled.

Plea in abatement OVERRULED.

W. T Thompson, Attorney General, Grant G. Martin and Halleck F Rose, for the state.

Charles J. Greene and Ralph W. Breckenridge, contra.

OPINION

LETTON, J.

On July 5, 1907, the attorney general filed in the name of the state of Nebraska petitions against the Adams Express Company, and four other express companies doing business in this state alleging in substance: That the defendants are common carriers engaged in carrying on an express business over various lines of railroad in the state of Nebraska; that the legislature of 1907 passed the following act (laws 1907, ch. 91), known as "Senate File No. 355":

"An Act to provide for the filing of schedules of rates charged by express companies for the transportation of money or merchandise within the state of Nebraska; to fix a maximum charge for such service; to provide for the enforcement of the provisions of this act; and for penalties for failure to comply with its provisions.

"Be it Enacted by the Legislature of the State of Nebraska:

"Section 1. (Express company Defined.) All persons, associations or corporations engaged in the transportation of money or merchandise for a money consideration in cars other than freight cars and on trains other than freight trains shall be deemed an express company within the meaning of this act.

"Section 2. (Schedule of Rates.) Within thirty days after the passage and approval of this act, all express companies doing business in this state shall file with the railway commission a complete schedule of the rates and classifications charged for the transportation of money or merchandise within this state by such company, which was in force on the first day of January, A. D. 1907.

"Section 3. (Rates.) Express companies may charge and receive for the transportation of merchandise within the state of Nebraska any sum not exceeding seventy-five per cent. of the rate as shown in the schedule provided for in section 2 of this act until after the state railway commission shall have provided a greater rate.

"Section 4. (Same, Minimum.) Provided that nothing in this act shall be construed to change the prepaid rates on merchandise weighing one (1) pound or less; and provided, further, that no provision of this act shall reduce any special contract rate in force for the transportation of cream, milk or poultry or any charge to a sum less than fifteen cents; and provided, further, that nothing in this act shall abridge the authority of the railroad commission to make a reduction in any rate provided for in this act.

"Section 5. (Violation of act.) If any express company should fail to comply with the provision and conditions of this act, they shall be fined on conviction a sum not less than ten dollars or more than one thousand for each offense.

"Section 6. (Enforcement of Act.) The Nebraska state railway commission, and if there be no commission, then the governor with the assistance of the attorney general, are hereby empowered to enforce the provisions of this act.

"Section 7. (Emergency.) This act shall take effect on and after its passage and approval.

"Approved April 5, 1907."

That it is the duty of the defendant to obey the statute and put in force the rates fixed by the legislature in said act, but that the defendant has put in force unlawful charges and rates for intrastate transportation of merchandise within the state of Nebraska, and is exacting from the people of the state of Nebraska unlawful, exorbitant and unconscionable rates and charges; that individual citizens who are interested are unable to cope with the defendant, and that it is the duty of the state to protect the people from the unlawful, exorbitant rates and charges exacted by the defendant. The prayer is for an injunction to prevent the defendant from making or putting into effect any other or different charges from those prescribed in the act, or from interfering with or attempting to change the rates and charges established by law for its services.

An answer was filed, which contained, among other things, an allegation that the law was not effective on July 5, 1907, on account of not having been passed with an emergency clause. The attorney general filed a motion to strike this part of the answer, on the ground that, under the provisions of section 7 of the act, which provides: "This act shall take effect on and after its passage and approval"--the act took effect as soon as passed and approved by the governor upon April 5, 1907. The motion to strike was overruled, the court being of the opinion that the act failed to comply with that part of section 24, art. III of the constitution, which provides: "No act shall take effect until three calendar months after the adjournment of the session at which it passed, unless in case of emergency, to be expressed in the preamble or body of the act, the legislature shall, by a vote of twothirds of all the members elected to each house, otherwise direct"--and that the act, therefore, did not take effect until three calendar months after the adjournment of the session. By consent this answer of the defendant company has been withdrawn, and an answer in the nature of a plea in abatement has been filed, in order to present certain preliminary questions which, if the contention of the defendant is upheld, would abate the action. In substance it is pleaded that the state of Nebraska has no power or authority under the constitution and laws of the state to maintain the action; that the supreme court has no jurisdiction; that the petition does not show whether the defendant is a person, association, or corporation; that the rates charged at the time the suits were begun were those in force prior to the 1st day of January, 1907, and that the rates provided for in the act were not in force and effect at the commencement of the present suit, and that the defendant was under no duty under the terms of the act to charge the rates therein provided for.

1. For convenience, we will consider the first and second points together. The defendant asserts that the state of Nebraska has no power or authority under the constitution and laws of this state to maintain the suit, and that this court has no jurisdiction; while the attorney general maintains that the state may maintain a suit in equity in this court to protect the general welfare by protecting the public from oppressions, extortions and other injuries, though the state of Nebraska has no pecuniary or property interests in the suit. Section 22, art. VI of the constitution, provides: "The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought"--and section 2, art. VI, relating to the supreme court, provides: "It shall have original jurisdiction in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law." Referring to that clause of section 22, supra, which provides that "the legislature shall provide by law in what manner and in what courts suits shall be brought," it was held in State v. Moores, 56 Neb. 1, 76 N.W. 530, and, also, in In re Petition of Attorney General, 40 Neb. 402, that, even though the provisions of section 2 may not be selfexecuting, still that they have already been sufficiently supplemented by legislation, so that the legislature has actually provided by law in what manner suits by the state should be brought, as required by section 22, art. VI.

But it is contended that the state is not properly a party in this case, and it is argued that no suit can be instituted by the state in the exercise of its constitutional powers or "sovereign capacity," except such suit is expressly provided for by statute; that the act in question has by its terms imposed upon the executive department the duty of its enforcement, and that it is therefore beyond the power of the attorney general to shift the burden of executing the law from the executive to the judicial department; that section 6 of the act provides: "The Nebraska state railway commission, and if there be no commission, then the governor with the assistance of the attorney general, are hereby empowered to enforce the provisions of this act"--and therefore that the railway commission is the only body vested with authority to enforce the provisions of the act. It is to be noticed, however, that no powers are conferred upon the railway commission by the statute with respect to the enforcement of the law other or greater than those given to private individuals. There is no procedure specified by which that body may act directly on the offending carrier. The railway commission, if it seeks to enforce the law, must travel the same road as any private citizen--appeal to the courts for relief, or for the punishment of the carrier who violates the law.

The main question presented by defendant's argument is whether the state of Nebraska, in behalf of its citizens concerned with the transportation of merchandise, may apply to this court in an original suit in which it has no pecuniary interest for relief from unjust exactions and extortionate charges made by express companies engaged as common carriers within the state. It is alleged in the petition that the defendant is carrying on its business over various lines of railroad in the state of Nebraska for hire and is continually transporting money...