22 Neb. 313 | Neb. | 1887
On the 24th day of September, 1887, the board of transportation of this state served notice upon the respondent, requiring it to reduce its freight charges 33J per cent on all its lines within the state of Nebraska, on or before October 1st, 1887, a schedule of the charges to be made as reduced for freight on said lines of road within the state being furnished to the respondent. The respondent neglected to comply with the order of the board, and on the 4th day of October, 1887,- the board, through the attorney general of the state, applied for an alternative writ of mandamus to compel the respondent to comply with said order. The writ was returnable on the 5th of that month, when the respondent, by its attorney, appeared and prayed for additional time in which to plead to the writ, which time was granted. The respondent demurred to the complaint, and also to the alternative writ, and the case was set for hearing on the 17th day of October, 1887. On that date the attorney for the respondent not appearing, and the attorney general being absent at Washington on business pertaining to his office, the case was passed until his return. On his return, the case was set for hearing on the 31st day of October, 1887. At that date the attorney for the respondent appeared and filed a statement of an alleged compromise with the board of transportation of the state, except the attorney general, and also a resolution of said board, except said attorney general, asking the court to continue the case until the January term. This the attorney general resists, and insists that the case shall proceed, in order that the authority of the board over the subject-matter may be determined. The first question presented, therefore, is the. authority of the
Section la of article V., chapter 83 of the Compiled Statutes, 1887, provides that, “The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested, or a party, and shall also, when requested by the governor, or either branch of the legislature, appear for the state, and prosecute and defend in any court, or before any officer, any cause or matter, civil or criminal, in which the state may be a party or interested.” The attorney general is thus the law officer of the state, and intrusted by law with the management and control of all cases in which the state is a party or interested. The majority of the state board of transportation, therefore, cannot control his action in the premises, and the motion to continue the cause must be overruled.
2d. Upon the overruling of the.motion for continuance, the attoi’ney for the respondent asked leave to withdraw the demurrer, and for time in which to prepare and file an answer. This, however, cannot be permitted. The respondent denies the authority of the state board to regulate and control the rates of freight upon its lines of railway. The question of power is fully raised by the demurrer, and should be decided before entering upon the consideration of questions of fact. It is important, too, that if such power should be found to exist, that the question be determined, so that parties aggrieved may apply to the board for relief. , The motion for leave to withdraw the demurrer and file an answer is therefore overruled. If, however, the court shall decide that the board of transportation has the power to regulate rates as contended for in the petition and alternative writ, the demurrer will be overruled, and upon proper application the defendant will have leave to answer.
It is contended by the attorneys for the respondent that without a charge actually made in reference to somespecific freight and against some particular person, the statute is not and cannot be violated, and it is said, p. 6 of the respondent’s brief, “ A charge cannot be made when there is no property transported, and when there is no person for whom such property has been or is to be transported. There must be both a specific person and specific property, and the charge must be made for such specific property and against such specific person; and it must be for such serv
The seventh section requires such railway company to file with the board copies of its schedules of its rates, fares, and charges, which have been established and published in compliance with the statute, and promptly to notify said board of all changes made in the same, and, also, to file with said board copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this act to which it may be a party, and in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates, or fares, or charges, for such continuous lines or routes, copies of such joint tariffs shall also in like manner be filed with said board, such continuous lines shall publish the joint rates, fares, and charges thereon,
The fourteenth section requires the board to make a report in writing in respect to any investigation which they have made, which shall include the findings of fdet together with a recommendation as to what reparation, if any, can be'made by the common carrier to the party injured, and such findings shall be deemed prima facie evidence of every such fact found. The fifteenth section declares that if it be made to appear to the satisfaction of the board, either by the testimony of witnesses, or other evidence, that anything has been done, or permitted to be done, in violation of the provisions of this act, or any law-cognizable by said board by any common carrier, or that
The mention of the district court in the above section does not exclude the supreme court from hearing any case in which it has original jurisdiction.
Section seventeen provides that “ said board shall have the general supervision of all railroads operated by steam in the state, and shall inquire into any neglect of duty or violation of any of the laws of this state by railroad corporations doing business in this state, or by any officer, agent, or employe of any railroad corporation doing business in this state; and shall, from time to time, carefully examine and inspect the condition of each railroad in this state, and its equipments and manner of the conduct and management of the same, with reference to the public safety, interest, and convenience. It shall carefully investigate any com
It will thus be seen that the board is clothed with the “general supervision of all railroads operated by steam in the state.” * * * * * And it is made its duty to “ carefully investigate any complaint in writing and under oath, concerning ***** any unjust discrimination against either any person, firm, or corporation, or locality, either in rates, facilities furnished, or otherwise, ********* ^ orc]er prevent unjust discriminations against either pe?'sons or places; it shall make a finding of the facts and an order requiring said
Webster defines the word “ supervision” to be “ The act of overseeing; inspection, superintendence.” The board, therefore, is clothed with the power of overseeing, inspecting, and superintending the railways within the state, for the purposes of carrying into effect the provisions of this act, and they are clothed with power to prevent unjust discriminations against either persons or places.
The attorneys for the respondent contend that the act is to receive a strict construction. No satisfactory reason, however, was given for the adoption of such rule. The act is remedial in its nature, and is designed to prevent and punish abuses in the management of some or all of the railways of the state, and in construing remedial statutes, there are three points to be considered, viz., the old law, the mischief, and the remedy; that is, how the law stood at the making of the act, what the mischief was for which the former law did not provide, and what remedy the legislature has provided to cure this mischief, and it is the business of courts so to construe the act as to suppress the mischief and advance the remedy. 1 Bl. Com., 87. Rogers v. Omaha Hotel Co., 4 Neb., 58.
Here is an act which declares that all charges shall be just and reasonable, prohibits and declares unlawful all unjust and unreasonable charges ; which requires schedules of such just and reasonable charges to be posted for the use of the public, and prohibits an advance in rates except upon certain conditions; which prohibits any preference in favor of or against any person or place; which requires the board to investigate all complaints against any railway corporation doing business within the state, and gives such board power to call for persons and papers in order that their investigations may be thorough and the report thereof based upon facts, and also makes their finding of fact prima
. In the case under consideration the board found that the rates and charges of the respondent were excessive; in other words, that there was unjust discrimination against that part of the state, and having so found, the board is clothed with ample power to. .require such railway company to reduce its rates and charges. The power of the board, there
4th. Some objection is made to the remedy by mandamus, and it is said by the attorneys for the respondent that the writ may not issue where there is a plain and adequate remedy in the ordinary course of the law [Code, Sec. 646]; and therefore “ it may not issue 'in this case, because there is a plain and adequate remedy in the law for enforcing the order of the board of transportation, if its order is a lawful one, by application to the district court in the mode pointed out by the 16th section of the act of 1887. That the proceeding under the 16th section is both plain and adequate.
“ That the legislature did not intend to authorize or permit the enforcing of all orders of the board by mandamus, is clear, from the fact that as to the particular matters mentioned in the 17th section, it gave authority to proceed by mandamus as the only and exclusive remedy for enforcing such orders, and as to all other orders in reference to all other matters mentioned in the act, the legislature provided as the only and exclusive remedy an application in the first instance to the district court, as provided in section 16.
“ The fact that the legislature specifically gave the right to proceed by mandamus, in the cases mentioned, in the 17th section only, and provided other specific and adequate remedy for all other cases, leaves no doubt that it was the intention of that body that mandamus should only be resorted to in the cases provided for in the 17th section.”
These objections are untenable. They are that the district court alone has jurisdiction, and not that the relator has another remedy besides mandamus. But even if the objections were to the form of the remedy, they could not be sustained. The fact that an action will lie does not supersede the remedy by mandamus. If the remedy by an action is not plain and adequate, a mandamus may be issued, notwithstanding an action would lie. State v.
Judgment accordingly.