82 Neb. 225 | Neb. | 1908
At the March, A. D. 1908, term of the district court for Platte county, an information was filed against the defendant, David T. Martyn, Sr., which, omitting the title and formal parts, was, in substance, as follows: That on or about the 15th day of January, 1908, David T. Martyn, Sr., then and there being, did unlawfully accept from the Union Pacific Railroad Company, a corporation owning and operating lines of railroad in the state of Nebraska, a free pass for travel on and over all the lines of railroad owned and operated by the said Union Pacific Railroad Company in said state; and did then and there unlawfully use said pass for the free transportation of himself as a passenger on and over the said lines of railroad in said county and state; the said David T. Martyn, Sr., not being then and there an officer, agent or bona fide employee, the major portion of whose time is or was devoted to the service of said railroad company. The information in conclusion also stated facts sufficient to show that the defendant was not included within any of the exceptions contained in chapter 93 of the laws of 1907, commonly called the “Anti-Pass Law.”
To this information the defendant entered a plea of not guilty. In due time he was placed on trial, and the cause was finally submitted on the contract under which the pass in question was issued and an agreed statement of facts; It was provided, among other things, by said contract that the defendant should furnish all necessary surgical and medical treatment to the sick and injured employees of the Union Pacific Railroad Company free of charge to said employees, and also render such services to passengers and others, for whom the company should request the same, between Schuyler and Silver Creek, Nebraska, for which he was to receive an annual pass on the Nebraska division of said railroad, together with trip passes upon other divisions thereof, and $25 a month during his employment, which it was provided could be can
It is contended by the state that the record shows beyond any question or chance of reasonable contention that defendant was guilty of a plain violation of our statutes prohibiting the acceptance and use of free transportation. On the other hand, defendant contends first, that a pass issued in good faith to a regular practicing physician in return for services performed and to be performed by him in the treatment of persons injured on or about the railroad issuing it is not a free pass within the meaning of the act of March 30, 1907, prohibiting the giving, acceptance and use of passes, or free transportation of passengers over any and all lines of railroad within this state; second, that the act violates section 3, art. I of the constitution of this state, which provides that .“no person shall be deprived of life, liberty or property, without due process of law”; and, third, that the act violates section 16, art. I of the constitution, which provides that “no bill of attainder, eos post facto law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities shall be passéd.”
To determine these questions it is not only proper, but necessary, for us to consider all of the several provisions of our statutes relating to, or in any manner regulating, the business of common carriers within this state; and we should also take into consideration the evil sought to be corrected by the several legislative acts on that subject, together with the means adopted to accomplish that
The defendant’s first contention is that his pass is not a free pass within the meaning of the statutes above referred to. To support this proposition his counsel cite Dempsey v. New Yorh C. & H. R. R. Co., 146 N. Y. 290. In that case one Dempsey, a railroad policeman appointed by the governor of the state of New York pursuant to statute, had entered into a contract with the defendant railroad to protect its property, and be ready for such service at all times on demand; and it was also agreed that, if he would procure his appointment to the office of
Our attention is next directed to the opinion of the attorney general of the state of Wisconsin, wherein he decided that a contract between the assistant attorney general and a railway company, by which that officer was to act as attorney for the company in consideration of an annual pass, was not a violation of the anti-pass law of that state. An examination of that opinion, however, discloses that it was based on Dempsey v. New York C. & H. R. R. Co., supra, and therefore has no application to the facts here in question, or the law by which our decision must be governed. Again, the obvious impropriety of the employment of the assistant law officer of the state by a railroad company, and the inconsistency of his petition in accepting such employment, affords sufficient reason to justify us in declining to follow that opinion.
Finally, on this branch of the case, counsel present Smith v. New York C. & H. R. R. Co., 24 N. Y. 222, and New York C. R. Co. v. Lockwood, 84 U. S. 357. We find, upon an examination of those cases, that the point decided by each of them was that a shipper, traveling on a drover’s pass issued to enable him to take care of his live stock en route, was not a gratuitous passenger in such a sense as to relieve the carrier from liability for negligently causing his death. Just how those cases can aid us in determining the questions under consideration we are not now advised, and so far have been unable to ascertain. On the other hand, we find that in Marshall v. Nashville R. & L. Co., 118 Tenn. 254, 9 L. R. A. (N. S.) 1249, the nature of a free pass issued by a railroad com
An examination of the contract under which the pass in question was issued to the defendant discloses, as above stated, that it could be abrogated or annulled at any time for cause, and the impression is created thereby and by the whole record that for the contingent services which the defendant was to render to the Union Pacific Railroad Company, if requested, he was to receive and accept $25 a month, and that the pass in question by which he was permitted to ride upon the trains of that company over its Nebraska division, free of charge, was a mere gratuity, and was so considered by both the defendant and the railroad company until after the passage of the act in question herein. It seems quite evident that any expected benefits by reason thereof which might be received by the railroad company were so remote and contingent as to constitute no consideration therefor. If the defendant’s pass is not a free pass within the meaning of the act, which is the basis of this prosecution, then the statute itself is as use
We come now to dispose of the defendant’s second and third contentions, which strike at the constitutionality of the law involved in this controversy. These questions will be considered together, for what may be said as to one of them applies with equal force to the other. It is asserted that the anti-pass law is unconstitutional because it impairs the obligations of the contract existing between the defendant and the railroad company, and deprives defendant of his property without due process of law. To correctly decide this question, we should construe all of the provisions of our constitution and statutes which relate to or have any bearing thereon together. By section 7, art. XI of the constitution, it is provided: “The legislature shall pass laws to correct abuses and prevent unjust discrimination and extortion in all charges of express, telegraph and railroad companies in this state and enforce such laws by adequate penalties.” It thus appears that the power to regulate intrastate commerce and prevent unjust discriminations is not only granted to the legislative assembly by the constitution, but it is thereby made a duty which the law’ making body is commanded to perform. It is also well settled that the internal commerce of a state, that is, the commerce wholly confined to and carried on within the limits of a single
Again, it may be said, if the contract for the pass in the case at bar ever had any validity, the provisions of our constitution above quoted entered into and became a part of it at its inception. And its terms and obligations were at all times subject to the power of the legislature to pass laws “to correct abuses and prevent unjust discriminations.” Therefore, when the law in question took effect, the contract became illegal, and its obligations gave way and were suspended, for it cannot be said that it was of such a character as to suspend the provisions of the constitution, and the statute passed in response to the command of that instrument.
It may be further stated that our antipass law is simply a police regulation, adopted in pursuance to the mandates of the supreme law, and therefore cannot be said to be unconstitutional. In Tiedeman, Limitations of Police Power, sec. 93, it is well said: “Whenever the business is itself a privilege or franchise, not enjoyed by all alike, or the business is materially benefited by the gift by the state of some special privileges to be enjoyed in connection with it, the business ceases to be strictly private, and becomes a quasi public business, and to that extent may be subjected to police regulation.” That such is the nature of the business of a common carrier there can be no doubt. In Bullard v. Northern P. R. Co., 11 L. R. A. 246, (10 Mont. 168), it was held, that “existing contracts for special freight rates or rebates from regular tariff rates, which had been made with railroad companies subject to the interstate commerce act, became illegal when that
We are therefore constrained to hold that the district court erred in directing the jury to find the defendant not guilty and discharging him from further prosecution. For the foregoing reasons, the exceptions of the state are
Sustained.