This is an application for a writ of mandamus to compel the respondent to perform the order of the board of trails - portation.
It appears from the record that in October, 1889, John W. Hollenbeck, Cyrelius Lemasters, John W. Miller, John Hayes, Charles Hall, and others, under the name of
“First — That the petitioners and complainants are now and have for many years been extensive raisers of corn, wheat, oats, and other cereals; and that large quantities of said cereals have been marketed in seasons past, and that large quantities are now ready for the markets; that the several farms and leaseholds of the petitioners are situated near Elmwood, in Cass county, Nebraska.
“Second — That the Missouri Pacific Railway Company is a common carrier engaged in the transportation of passengers and property by railroad under a common control, management, or arrangement for a continuous carriage or shipment through Elmwood aforesaid.
“ Third — That the said defendant railroad company is the owner of the right of way and depot grounds bordering the main and side tracks of the defendant company, upon which are located the station houses and other shipping facilities connected with the transportation originating at or destined to Elmwood station aforesaid; that the complainants aforesaid did make a written application to the general manager of the defendant company for a location on the right of way at Elmwood station aforesaid, for the erection of an elevator of sufficient capacity to store, from time to time, the cereal products of the farms and leaseholds of complainants aforesaid, as well as the products of other neighborhood farms; that the application aforesaid was refused by the general manager of the defendant company aforesaid.
“ Fourth — That the elevators now located on the right of way of the defendants aforesaid at Elmwood station aforesaid are during certain seasons of the year wholly insufficient in affording a market for the cereals of the complainants and others desirous of marketing their grain.
“Fifth — That the refusal of the defendant railroad com
The railway company filed an answer in that case, and issue was joined, and upon an investigation of the facts the board made the following findings and order:
“ First — That the defendant has all its side tracks within the limits of its right of way and depot grounds at the said station of Elmwood.
“ Second — That there are only two elevators at said station of Elmwood, having the combined capacity of ten thousand bushels, and that said elevators are insufficient to handle the grain shipped at said station; and that the owners and operators thereof have entered into a combination and do combine and fix the prices of grain and prevent competition in the purchase price thereof ; and that there are not sufficient facilities for the handling and shipping of grain at said station.
“ Third — That it is necessaiy for the convenience of the public, patrons, and shippers of grain of said railroad company that another elevator be erected and operated at said station.
“Fourth — That the defendant has permitted two elevators to be erected upon its grounds at said station, and that the same are now being operated, and that the said
“Fifth — That an elevator is necessary for the shipment of grain by railroad, and that by reason of the side track being placed within the right of way and depot grounds the plaintiff cannot ship grain without building its elevator upon the grounds of the defendant.
“Sixth — That there is room upon the grounds of the defendant at said station for another elevator without materially interfering with the operation of said railroad; and the building of the elevator by the plaintiffs upon said ground will not materially affect the defendant in the use of its grounds, or be an unreasonable burden to the defendant.
“Seventh — That granting of the right and privilege by the defendant to the elevators now standing upon its right of way and depot grounds at said station, and refusing to grant the same right and privilege to the complainants, is an unjust and unreasonable discrimination against the complainants, under the circumstances of this case.
“ Eighth — That the said respondent has discriminated against the complainants, and that it has unlawfully made and given a preference and advantage to Adams and Gilbert, and to Eells Bros., owners and operators at said station.
“ It is, therefore, by the board of transportation of the state of Nebraska, considered, adjudged, and ordered that the respondent, the Missouri Pacific Railway Company, shall ceaser and discontinue discriminating against the complainants, and grant to said complainants the same facilities and privileges as granted to the owners and operators of the elevators now established at said station; and that said respondent, within ten days after the service of this order, grant and give to the complainants, on like terms and conditions as granted to the said Adams and Gilbert, and Eells Brothers, the right and' privilege of erecting an elevator upon its grounds at said station adjacent to said respond
The respondent in its answer in this court admits that it is a corporation organized under the laws of the state, the petition of Hollenbeck and others, and the order of the board thereon and its refusal to comply with said order, and alleges:
“That it is the owner of the right of way and depot grounds bordering its main and side tracks at Elmwood station, upon which are located station house and freight shipping facilities connected with the transportation originating at said station, but alleges and charges the fact to be that such grounds were purchased by this respondent for the purpose of enabling it to carry on and successfully prosecute its business as a common carrier, and not for the purpose of disposing of the same, or using the same for purposes other than such as were necessary or incidental to its said business as a common carrier.
“That the board of transportation is not the real party in interest and cannot bring the action in its own name; that Hollenbeck and the other petitioners represent themselves individually and cannot invoke the aid of the board of transportation; that the said individuals named in said petition did make a written application to the respondent company for the location on the right of way at Elmwood station of this respondent company, of an elevator of sufficient capacity to store, from time to time, the cereal products of the farms and leaseholds of the said petitioners, as
There are other allegations in regard to the statutes and constitutional provisions of the state. The correctness of the findings of the board is not seriously questioned, but its power to make such findings and order is denied.
It is unnecessary to review at length the powers of the board of transportation. That question was very fully and carefully considered in State v. F., E. & M. V. R. Co., 23 Neb., 117, and in our view the judgment rendered therein is correct. In that case it was held that the findings of the board were prima facie evidence of the truth of the same, but when issue' is taken upon them in court the question of wdiat is
Section 3 of “An act to regulate railroads and prevent unjust discrimination,” etc., which took effect July 1,1887, provides: “That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any preference or advantage to any particular person, company, firm, corporation, or locality, on any particular description of traffic, in any respect whatsoever, 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 whatsoever. Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and
Section 17 of the same act declares that “After a full investigation of the matter said board shall again make a finding of the facts and make such an order as it may deem just in the premises. If said railroad shall refuse or neglect to comply with such order, the board shall order the attorney general, or the county attorney of the proper county, to institute a suit to compel such railroad company to comply with such order and it shall be the duty of the attorney general, or the county attorney of the proper county, at the request of the board or any person interested in any such order or finding, to apply to the supreme court, or to the district court of any county through or into which its line of road may run, in the name of the state and on the relation of said boai’d, for a writ of mandamus to compel such railroad company to comply with such order; and upon the hearing of any such cause such finding and order shall be as against such railroad company prima faeie evidence of the reasonableness of such order and of the necessity of such repairs, changes, additions, or improvements, or other matters in such order required to be done or omitted.”
The right of the state board to bring the action is here expressly given, and the general provisions of the statutes in regard to the proper party plaintiff do not apply, as section 32 of the Code provides for the bringing of an action by an officer in such name as may be authorized by law. But it is said that the object sought in this case is private, and not of a public character. We think differently, however, as the purpose is to increase the facilities for shipping produce over a public highway.
The first section of the act also provides that “All
It will thus be observed that the provisions of our constitution and statutes relating to railways are that they shall have no favorites, that all persons having business with such companies relating to or connected with transportation shall be treated alike.
On the other hand, to protect the companies, the last half of section 4, article XI, of the constitution provides that “The legislature may, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads in this state.” The power of the legislature, therefore, in regard to the matters mentioned, is limited to what is reasonable.
The constitution and statutes make railways one of the public agencies of the state, and subject them to the laws and require such railways to render services of the same kind for all persons upon the same terms and conditions. A railway cannot carry the goods of A a certain distance for one dollar and charge B, or any other person, a greater sum for like service, and the same rule applies in all its transactions as a common carrier.
As was held in State v. R. V. R. Co., 17 Neb., 647-8; “ The right to build and operate a railroad, and to charge and take tolls and fares, is a prerogative granted by the state. Public utility is the consideration for such grant. Although in the hands o.f a private corporation, it is still a sovereign franchise, and must be used and treated as such; it must be held in trust for the general good. In the use of such franchise all citizens have an equal interest, and all must, under the same circumstances, be treated alike, with
On the other hand, railways are protected by the constitution from unjust legislation by the restriction that laws affecting rates, etc., must be reasonable. A railway franchise is thus held in trust for the general good, and in the use of the same all persons have an equal interest and equal rights. The right of way of a railway company is acquired for the use of the railway for public use, and this whether it is acquired by condemnation or conveyance by deed. In many cases the proprietors of land through which a railway is located, having no desire to obstruct the construction of the road, convey the right of way by deed, but the object is to enable the corporation to subserve the public interests by the construction and operation of the road, and the land having been conveyed for public purposes, cannot be diverted to other uses inconsistent with such public use.
It is a* well known fact that the ordinary mode of shipping grain on the railways of this state is through the intervention of elevators, which at the various stations on the line receive the grain and store it, if need be, for a time, and load it into cars for transportation. Elevators are thus a part of the system for the transportation of produce and come under the head of “facilities furnished” in the act of 1887, and questions relating to them are placed by that act under the control of the board of transportation; in other words, the railway company must give equal privileges to all persons who may desire, in good faith, to erect elevators at a station on its line in order to ship produce
If it is said that with the right to erect elevators upon like terms and conditions to all, the business would be
There is no doubt a railway constructed through any portion of the country is a great public benefit, both locally and generally, and it is equally well known that the earnings of a railroad depend largely upon the number, wealth, and prosperity of the communities through which
Our attention is called to the case of State v. C., M. & St. P. R. R. Co., 31 N. W. Rep., 365, which is said to be stronger than the one at bar. In 1885 the legislature of Minnesota passed an act which required any railway company organized under the laws of the state to permit any person, etc., for an annual rental of one dollar, to construct and operate an elevator at any of its way stations, etc., the penalty for a refusal being not less than $100 nor more' than $5,000. The action was brought to recover the penalty. The court held that the act was the taking of private property for a private use and therefore was unconstitutional. The question here involved does not seem to have arisen in that case, nor is there anything to show that the proposed regulation was reasonable.
The case of People v. C. & N. W. Ry. Co., 57 Ill., 436, and Old Col. R. Co. v. Tripp, 17 N. E. Rep., 89, do not seem to be applicable to the constitutional and statutory provisions of this state.
This is not a question of the taking of private property of the railway for an elevator. The question is, Can the railway company grant the right to one or two persons upon certain terms and conditions and deny it to others upon like terms and conditions? We answer, that under our constitution and statutes it cannot, as it can grant no exclusive privileges in the facilities for the handling and shipment of produce.
A railway company cannot permit the construction of certain elevators on its right of way and then prohibit other persons from the same privilege upon the ground that such right of way is private property. If this were so it would afford an easy mode for the evasion of the law, but it must treat all alike who in good faith engage in the business, and this where the side tracks are so constructed that the elevators must of necessity be constructed on the right of way, or along such side tracks on the sides of its right of way so that elevators may be constructed on the builder’s own land.
It follows that the writ will be granted. It probably will be unnecessary to issue the writ, as no doubt the proper facilities will be furnished without further order. Should they not be so furnished, however, within forty days, the writ will be issued as prayed for.
Writ allowed.