59 Neb. 364 | Neb. | 1899
Lead Opinion
In this action, commenced in the district court of Lancaster county, the company alleged its corporate organization and existence under the laws of the state, and that the defendants were acting and asserting the right to do certain things as the state board of transportation and its secretaries; that a complaint against the plaintiff company had been filed with the defendants, in which it
A temporary injunction was allowed. On hearing, a general demurrer to the petition was sustained, the injunction dissolved, and the action dismissed. The plaintiff has perfected an appeal to this court.
In the case of Nebraska Telephone Co. v. Cornell, 58 Nebr., 823, the same questions were raised in the district court, and in like manner — i. e., by general demurrer to the petition. One point in that case was in regard to right of equitable relief. The point is also urged in this case, and a brief filed in support of a motion for a rehearing in the former case is presented in this case in reply
One of the points of argument is relative to the constitutionality of what is denominated “the State Board of Transportation”; the main point made here being that, under the provisions of our constitution, no such board could be created or have an existence. The sections of the constitution to which attention is directed in the line of argument pursued are as follows: “The pow; ers of the government of this state are divided into three
In the year 1883 the house of representatives of the legislature requested of the judges of this court an opinion by which answers would be given to the following questions:
“This was a matter coming before the court by the following document:
“ ‘Whereas, The constitutionality of the railway commissioner system has been questioned, and there are differences of opinion among the members of this legislature as to the construction of section 26 of article 5 of the constitution of the state of Nebraska, which provides that*371 “no other executive state office shall be continued or created,”
“ ‘Therefore he it Resolved, That the members of the supreme court of this state be, and hereby are, respectfully requested to answer the following questions:
“ ‘1st. Would railway commissioners be state executive officers, or would the office of railway commissioner of the state be a state executive office if created by the legislature?
“ ‘2d. Would such an office, if created by the legislature, come within the inhibition of the constitution?
“ ‘3d. Would a law regulating the management of railroads in Nebraska under the commissioner system be obnoxious to any provision or provisions of the constitution of this state?
“ ‘4th. In your opinion could such a railroad commissioner law be framed that would be capable of enforcement?
“ ‘You are most respectfully requested to answer the above and foregoing questions in full at your earliest possible convenience.
“ ‘I certify the above to be a correct copy of the resolution adopted by the house of representatives on January 22,1883.
“ ‘Brad I). Slaughter, Chief Cleric.
“ ‘Lincoln, January 23,1883.’ ” See 15 Nebr., 679.
It was then stated as the opinion of the judges (Hon. Geo. B. Lake, then chief justice, and Hon. Amasa Oobb and Hon. Samuel Maxwell, judges): “The legislature has no power under the constitution to create railroad commissioners. The supervision of railroads by a commission would be proper, but the power must be conferred on executive officers already existing.” See 15 Nebr., 679. “In answering the former questions, we have seen that all executive power must be enforced by the officers provided for by article 5, as constituting the executive department, and that the powers imposed upon railroad .commissioners by the statute of the state of Iowa (and
The attorney for the company and the- attorney general, who appears for the state, call attention to the fact that the opinion to which we have referred was not announced in any pending cause, but in response to queries, and is not entitled to the weight and consideration to be accorded a decision in an actual matter of litigation; and they agree in the belief that the opinion is unsound and erroneous, but on different points and for diverse reasons. The latter vigorously and ably assails the portion of the decision which effectually negatived the proposition by which was disclosed the possible or contemplated creation of railroad commissioners as officers, and urges that the constitution does not prohibit the creation by the legislature of a board of transportation, and the authorization of their selection from the body of electors and persons other than those executive state officers named in section 1 of article 5 of the constitution. A somewhat fascinating question for study is outlined and presented in this brief; but we must decline to enter upon it or to indulge in it, for reasons which we deem sufficiently strong, the main one of which is that it is not of the matters of litigation in this case, and we have not time, inclination, nor would it be of any avail, to pass upon this point here, as what we might say, being upon a subject not involved, would not be decisive.
It is contended for the company that “The act of 1887,
It is asserted that the creation of the board and the provision for its secretaries are violations of the sections of the fundamental law of the state, to which we have just referred, or are evasions of them so violent as to be, in effect, violations. The attorney general says that they may be evasions in fact, but are not so in law, which may
It is insisted for the company that the parties who occupy the offices designated by the law of 1887 are made members of the board of transportation as individuals, and not as officers; that they are not required or empowered to act as officers, but as an organized board; that the secretaries are charged with the performance of all the duties, and are in fact the members of the board, and in reality state officers.- It is further argued that the duties are such as can not be said to naturally fall to any one of the officers named, and are wholly foreign to the matters which we recognize as distinctively to be given attention by some certain officers to the exclusion of all others. It is true that there are duties connected with the transaction of the government of a state which, by their very inherent qualities or elements, are for an attorney general to perform, and others which as certainly pass to the auditor'for adjustment; and so with the other offices and officers. But there are others, of which it may truly be said that they do not, by nature or characteristics, classify, define or assign themselves. They are blends, if I may use the term in this connection, having-some distinguishing elements which would apparently place them within the proper province of one office or officer, and some traits which would send them to another or three or more others, but the duties to be performed all executive or administrative in their characters. The duties assigned by the law of 1887 are clearly executive or administrative; so much of the former that it is no violence to any principle of right or true government that their doing be cast upon the corresponding, the executive department.
We are unable to agree that the law of 1887 makes the individuals members of the board. Its fair construction is of the officers, as distinguished from the individuals, and the duties cast upon them as officers; nor do we deem
We will now turn to what we consider are apparent matters^ of support of the action of the legislature; also to some matters which have given the law recognition as a valid exercise or expression of the legislative will. It is unquestionable that the constitution prohibits the creation of any state office other than those specially designated in that instrument; and an indication was given of what must be done in regard to the duties which were then being performed by officers who were not of the ones named in the constitution when it was stated that they must be assumed by the officers created by the constitution. See sec. 26, art. 5, supra. In section 1, article 5, wherein the executive department is defined and its officers named, it was provided that such duties should be performed by the officers as required by law. Strictly speaking, it may probably be said that, in express terms, in the section this is made applicable to but four of the officers; but the true sense of the section is that each and all of the state officers shall perform such duties as may be required by law, confined, of course, to duties properly assignable to the executive department. The constitution makers sealed the doorway to any more executive State offices, and must have done so, knowing and contem
The validity or constitutionality of the law of the creation of the board was not discussed. It was necessarily involved, as, if the law was invalid, there would exist no authority by it to act. We aré satisfied that the law is not invalid for being, in the particulars noticed in the attack herein made upon it, repugnant to the provisions ■ of the constitution, to which attention has been challenged, and that in the cases cited it has been, in effect, declared not invalid.
In 1897 there was passed an act, in section 1 of which it was provided: “That from and after the' passage of this act, all persons or companies owning, controlling or operating, or that may hereafter own, control or operate a line or lines of express, telephone or telegraph, whose line or lines is or are, in whole or in part, in this state, shall be under the control of the board of transportation of this state, who shall have the same power to regulate the prices to be charged by any company or person or per
Affirmed.
Dissenting Opinion
dissenting.
I dissent from the propositions stated in the second and fourth paragraphs of the syllabus of the opinion of the chief justice in this case. The law herein assailed (Compiled Statutes, 1899, ch. 72, art. 8) has constituted the attorney general, secretary of state, auditor of public accounts, state treasurer and commissioner of public lands and buildings a board of transportation. In my view, this legislation is unconstitutional, at least to the extent that the attorney general and commissioner of public lands and buildings are included as members of said board, and I will briefly state the reasons for this conclusion. ■ By section 1, article 5, of the constitution eight executive state offices were created, consisting of the governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney general and commissioner of public lands and buildings. This section closes with the significant provision that “The governor, secretary of state, auditor of public accounts, and treasurer shall reside at the seat of government during their terms of office, and keep the public records, books, and papers there, and shall perform such duties as may be required by law.” Thus the framers of the constitution, and the people in adopting it, have said that four of the eight officers of the executive department shall not only reside at the capital of the state, but shall discharge such duties as the law may require them to perform — that is, duties outside of, and not pertaining to, their respective offices. As to the four other executive state officers, namely, the lieutenant governor, attorney general, superintendent of public instruction and commissioner of public lands and buildings, the constitution does not require that they, or either of them, shall reside at any particular place in the state. Manifestly they are at liberty to choose their own «place of abode. Nor does the fundamental law declare that they “shall perform such duties as may be re