88 Neb. 669 | Neb. | 1911
Lead Opinion
This is an original action in this court, begun in the name of the state by the attorney general upon the application of the state railway commission. The petition alleges that defendant is a corporation authorized to do business in this state, and that the business which it .is authorized to do “is the building and' operation of public highways in said state for the carriage and transportation of persons and property within and through, and in and
To this petition the defendant has filed a general demurrer upon two grounds: First. “The court has no jurisdiction of the subject matter of the action.” Second. “The petition does not state facts sufficient to constitute a cause of action.” The statute forbids the selling of intoxicating liquors in this state without first obtaining a license therefor, and in 1909 the legislature enacted a statute entitled, “An act to prevent intoxication and the drinking of intoxicating liquors on passenger trains and coaches in the state of Nebraska, and providing a penalty for failure to enforce the provisions thereof.” Laws 1909, ch. 88. The act appears as sections 38u-38fZ, ch. 50, Comp. St. 1909. The first section of the act is as follows: “It shall be unlawful for any person to be found in a state of intoxication or to drink intoxicating liquors of any kind, as a beverage, upon any railway passenger train, coach, closet or vestibule thereof, or platform connected there*with, while said passenger train or coach is in the service of passenger transportation within this state; and all conductors finding any person in a state of intoxication or drinking intoxicating liquors of any kind, as a beverage,
The first question presented is as to the jurisdiction of this court. The original jurisdiction of this court is derived from the constitution. Legislation cannot enlarge or restrict it. The constitution gives this court original jurisdiction of all “civil cases in which the state is a
There is another element in this case not involved in the case considered by Mr. .Justice Brewer, and which, it seems to us, is of controlling importance. The defendant is a public service corporation; it exercises the right of eminent domain, and is one of the instrumentalities of the
Our statute does not provide such a remedy at law, and the conditions of this case are quite different from those involved in the suppression of an ordinary illegal liquor saloon. The policy of our state as regards the. matters herein complained of is clearly marked out in its legisla
We think that these considerations require courts of equity to assume jurisdiction, and also invest the state with the power and duty to act. In the case to which we have so often referred we find the following language: “It is obvious, from these decisions that while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the constitution are entrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties!” In re Debs, 158 U. S. 564, 586. This seems also to be the duty of the state in such matters as are entrusted to its care.
In State v. Pacific Express Co., 80 Neb. 823, the original jurisdiction of this court is maintained in language stronger than is necessary to justify our jurisdiction in this case. This court, speaking through Letton, J., there declared the law to be: “The jurisdiction conferred upon this court by the constitution cin all civil cases in which the state shall be a party’ is not confined to cases in which the state has a mere pecuniary interest, but may extend to all cases in which the state, through its proper officers, seeks the enforcement of public right or the restraint of public wrong. A wrong of a nature which affects the rights and interests of people living in almost every city,
The statute expressly makes it the duty of the state railway commission to see that the law against having or drinking intoxicating liquors on railroad trains is enforced. In performing that duty the railway commission advised and sanctioned these proceedings. We conclude, then, that the matter presented is a proper -subject for equitable cognizance; it is within the provine? of the state to prosecute the proceedings; and, the state being the proper party plaintiff,, this court has original jurisdiction.
The demurrer to the petition is therefore
Overruled.
Dissenting Opinion
dissenting.
I am unable to concur in the majority opinion. It was the purpose of the fundamental law lo make this a court of review, and not one of general jurisdiction. To that end the constitution, by which this court was created, fixed and determined its jurisdiction. It is expressly stated in that instrument that “the supreme court shall have jurisdiction in all cases relating to the revenue, civil cases in which the state is a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as
Finally, if injunction is the proper method of enforcing our criminal law, suits to that end should be commenced in the district courts of this state, which are courts of general and not special or limited jurisdiction. Those courts are open at all times, and have full power to grant all necessary relief, and from judgments there rendered appeals may be taken to this court. If that method is pursued, no question as to our jurisdiction would arise, By requiring such actions to be commenced and prosecuted in the district court, we would be able to devote more of our time to the hearing of the many cases brought here by appeal, and thus conserve the main purpose for which this court was created. This'would also, in a measure, relieve the overcrowded condition of our docket.
For the foregoing reasons, among others, I am of opinion that the demurrer to the jurisdiction should be sustained and the proceeding dismissed.