60 Neb. 741 | Neb. | 1901
Lead Opinion
On July 13,1897, one T. H. Tibbies filed a complaint with the state board of transportation charging that the Burlington & Missouri Biver Bailroad Company in Nebraska was exacting and receiving unjust and unreasonable rates on the shipments of live stock. A hearing was had before said board of the matter alleged in said complaint, which resulted in an order being entered on November 26, 1897, that the defendant, on or before December 5, 1897, restore the car load rates in force prior to August 10,1897. Subsequently the ■ board extended the time for taking' effect of said order until December 16, 1897. The state, claims that the defendant has violated said order of the state board of transportation, and this action was commenced in this court to recover the sum of $25,000 as penalties for such alleged violation, for which provision is made in section 9, article 8, chapter 72, Compiled Statutes. A demurrer to the petition has been interposed, upon which the cause has been submitted for our consideration.
The legislature in 1885 passed an act entitled “An act to provide a board of railroad commissioners, to define their duties and to provide for their salaries.” Session Laws, 1885, ch. 65, Compiled Statutes, 1885, ch. 72, art. 8,-By this act the attorney general; secretary of state and auditor of public accounts were constituted the board'of rail road commissioners. Chapter 60 Session Laws, 1887, is entitled “An act to regulate railroads, prevent unjust discrimination, provide for a board of transportation, and define its duties, and repeal articles 5 and 8 of chapter
But said chapter 60 is invalid for reasons more substantial. It is conceded that no bill bearing the title to the enrolled act known as chapter 60, Session Laws, 1887, was ever introduced in either house of the legislature, but the contention of the state is that the act in question originated in the senate and was known as Senate Pile 41. The title by which it was introduced was “A bill for an act to repeal article 8, of chapter 72, entitled ‘Railroads/ of the second edition of the Compiled Statute of the State of Nebraska.” The purpose of that bill was solely the repeal of the law creating the board of railroad commissioners, passed in 1885, and such object was with sufficient clearness expressed in the title of the act, but it contained no provision for the creation of a state board of transportation. But it is argued by the attorney general that said Senate Pile No. 41 was amended in the senate and duly passed by both houses of the legislature of 1887. It appears that Senate Pile No. 41, after having been read in the senate on two different days, was referred to, and reported back by the appropriate committee under the title by which it was introduced. Thereafter all after the enacting clause was stricken from the bill, and what now constitutes the act creating the board of transportation was substituted, but the title remained unchanged, and in this condition the act was read the third time, placed upon its passage and received the required number of affirmative votes to carry the same. The journal of the senate, after stating these facts, recites: “A constitutional majority having voted in the affirmative, the bill was passed and the title agreed to as amended.” The journal of the senate does not disclose that the original title under which the act was introduced was ever amended in that body, unless such fact is revealed by the quotation just made. The journal of the
It will be observed that Senate File No. 41, when introduced and at various days of its pendency before the legislature, contained one title and at other periods of ’ legislation and when presented to and signed by the governor possessed another or entirely different title. It is, however/ argued by the attorney general that the title under which Senate File No. 41 was introduced was changed in the senate before its passage by that body as disclosed by the recital in the manuscript copy of the senate journal with reference to that bill that “a constitutional majority having voted in the affirmative, the bill was passed and the title agreed to as amended.” What amendment to the title of the bill, if any, was made in the senate the journal of that body does not inform us; and the silence of the journal on that subject it is contended is no proof that the original title which Senate File No. 41 bore was not amended to conform to the title which the enrolled bill now bears and State v. Frank, 60 Nebr., 327, is cited in support of the proposition. Whether or no this argument is well founded it is unimportant that „ we now pause to consider, since the history of the progress of the bill through the two houses of the legislature establishes beyond controversy that the bill as enrolled was not read at. large on three separate days in each house, or that the constitutional majority of the senate and house voted in favor of its passage, as required by the constitution to become a law. It is true the enrolled bill is prima facie evidence of its passage, but it is not conclusive evidence upon the subject. In Webster v. City of Hastings, 59 Nebr., 563, Mr. Justice Sullivan observed: “The rule established by our former decisions is that the due authentication and enrollment of a statute affords only prima facie evidence of its passage; and that the leg
For the reasons stated the demurrer to the petition is sustained, and the action
Dismissed.
Concurrence Opinion
concurring.
Although not entirely agreeing with the course of reasoning pursued by the chief justice in the foregoing opinion, I concur in all the propositions stated in the syllabus, and regard as irresistible the conclusion that the act under consideration failed to pass both branches of the legislature in compliance with the commands of the constitution.
