81 Neb. 67 | Neb. | 1908
In their petition relators allege, among other things, that the respondent is a corporation and a common carrier ; that it is the duty of respondent, pursuant to section 5, art. VIII, ch. 72, Comp. St. 1907, to file with relators within 30 days after the 27th day of March, 1907, all freight schedules, classifications, rates, tariffs and charges used by respondent and in effect January 1,1907; and that respondent refuses so to do, though often requested by relators. Relators pray for a writ of mandamus requiring respondent forthwith to file such schedule with relators as the Nebraska State Railway Commission. Respondent answered, setting forth at length the nature of its business, admitted that it was a corporation, but denied that it was a common carrier.
The following facts are either admitted by the pleadings or established by the evidence: The respondent is a corporation duly organized and existing under and by virtue
At the general election in 1906 there was adopted an amendment to our constitution which is as follows: “There shall be a State Railway Commission, consisting of three members, who shall be first elected at the general election in 1906, whose terms of office, except those chosen at the first election under this provision, shall be six years, and whose compensation shall be fixed by the legislature. Of the three commissioners first elected, the one receiving the highest number of votes, shall hold his office for six years, the next highest four years, and the lowest two years. The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the legislature may provide by law. But in the absence of specific legislation, the com
By an act of the legislature, appearing as chapter 90, laws 1907, the legislature prescribed the powers, duties and qualifications of the state railway commission. Section 4 is in part as follows: “The term common carriers as used herein shall be taken to include all corporations, companies, individuals and association of individuals, their lessees, or receivers (appointed by any court whatsoever) that may now or hereafter own, operate, manage or control any railroad, interurban or street railway line, operated either by steam or electricity or any other motive power, or part thereof, or any express company, car company, sleeping car company, freight and freight line company, telegraph and telephone companies and any other carrier engaged in the transmission of messages or transportation of passengers or freight for hire.”
The question presented for determination, stated generally, is this: Is the respondent a common carrier within the meaning of the constitutional amendment and the act of the legislature of 1907? Respondent contends that it is not a common carrier within the common law definition of that term, that the common carriers of the constitutional amendment are such carriers only as would be declared common carriers by the common law, and that the definition prescribed by the legislature is an unwarranted expansion of the meaning of the term. At the threshold of this case, therefore, we are met with the inquiry: Is the definition of “common carrier” in the act of the legislature an enlargement of the meaning of those words which will prohibit the application of the act to a class of agencies not strictly within the common law classification of common carriers?
There are but two carriers known in law — private carriers and common carriers. A private carrier undertakes to deliver particular goods at a particular place. He is not hound in law to undertake such transportation. When opportunity for such employment is presented, he may
Respondent does not produce commodities. Its business is strictly one of service to others. Its scope is one of magnitude, handling, as the evidence shows, 1,250 cars a day, or 456,250 during the year. Its vocation is the transportation of freight over its own lines. It holds itself out to the public as ready and willing to transport all freight for those who have occasion to employ it for the purpose for which it exists, and receives compensation therefor. The statute, we think, has reference to all
In Missouri P. R. Co. v. Wichita Wholesale Grocery Co., 55 Kan. 525, 40 Pac. 899, it Avas held: “A railroad company taking loaded cars from its connection Avith another railroad, and transferring them by means of a SAvitch engine over a portion of its OAvn track to a spur of its owrn, and receiving its compensation from the connecting road, acts as a common earner, and is liable as such for the safety of the goods transported, no matter how short the distance' from the place of receipt to that of delivery.” In the opinion wre find the folloAving: “All railway corporations are by statute made common carriers, and required to transport persons and property, as such, for all persons alike. Gen. St. 1889, par. 1212. The distance over Avliich freight is hauled, whether in car-load lots or in less quantities, Avhetlier in its own cars or those belonging to connecting carriers, can make no difference with the capacity in Avhich the company acts. A railroad transporting a passenger or a car-load of freight one mile, using a SAvitch engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight or passenger train.” See, also, United States v. Union Stock Yards Co., 161 Fed. 919.
The bulk of respondent’s business comes from the railroads running into South Omaha. These railroad companies are not producers of the goods, wares, merchandise
In the case at bar, the business of respondent differs materially from the business of the bridge compány in the case last cited in that, instead of maintaining' a highway for the use of other carriers, respondent uses its tracks and engines for the transportation of freight and cars of its patrons. As to the transferring of cars, loaded or empty, to and from the packing houses and transfer tracks of respondent and the railway companies, and to and from its yards, respondent is something more than a switching company. It is true the transfer of the cars from one track to another is necessary; but such transferring of cars to and from respondent’s tracks and those of the connecting lines does not differ from transfers made between connecting lines of other companies which are recognized by all as common carriers. Such business of respondent in the handling of loaded cars intended for one of the inf .Tries established upon its tracks requires it to convey the car from the termini of the connecting railways to the industry or place of destination. This does not differ from the last haul made of freight shipped over the lines of several connecting railways, except that with respondent the distance is shorter than is usual in cases of other carriers. The fact that charges are fixed at so much for each car transferred, and are not based upon Aveight, bulk, or distance hauled, Ave think is unimportant. The statute declares any company engaged in the transportation of freight for hire is a common carrier. The charge made by respondent is its hire, and it transports freight, notAvithstanding the fact that it may not know the contents of the cars hauled, ne\rertheless it is the existence of a necessity for the transportation of freight which gives réspondent occasion to exist.
In Kentucky & I. Bridge Co. v. Louisville & N. R. Co., supra, it is true that the physical act of switching cars
It is contended by respondent that the railway commission has jurisdiction only over such railroads as are recognized as such by section 4, art. XI of the constitution. That section reads as follows: “Railways heretofore constructed, or that may hereafter be constructed in this state are hereby declared public highways, and shall be free to all persons for the transí)ortation of their persons and property thereon, under such regulations as may be prescribed by law. And 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 liability of railroad corporations as common carriers shall never be limited.” The constitution does not declare what a railroad is. It declares that railways are public highways for the use of all persons for the transportation of their persons or property. Respondent’s railways cannot be said to be a highway for the transportation of persons; but this fact does not prevent the respondent’s business from coming within the jurisdiction of the railAvay commission under the authority conferred upon it by the recent amendment to the constitution (Comp. St. 1907, sec. 421a) and chapter 90, laAvs 1907. In other Avords, a company doing a transportation business may be a common carrier, although its traffic is over tracks which may not constitute a public highway within the meaning of the constitution. Again, there is nothing in the constitution, as it originally stood, or in the 1906 amendment, nor in the act of the legislature, which limits the term “common carrier’’ to railroads. It is equally applicable to a stage coach, a ferry boat, a street railway, a telegraph or telephone company. If a person ór a corporation holds itself out to the public as offering its
Respondent’s transportation business is subject to the orders of the railway commission, and Ave recommend that the peremptory writ of mandamus of this court be issued, commanding respondent to forthwith file Avitli the state railway commission all its freight schedules, classifications, rates, tariffs, and charges used by it and in effect June 1, 1907, pertaining to the transportation of freight.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that a peremptory AArrit of mandamus be issued, commanding respondent fortliwith to file with the. state railway commission all its freight schedules, classifications, rates, tariffs, and charges used by it and in effect June 1, 1907, pertaining to the transportation of freight.
Writ alloaved.